Co., 4 Fla. 200. But see Wheeler v. Nevins, 34 Me. 54; Baker v. Freeman, 35 Me. 485.
1 Codwise v. Hacker, 1 Caines, 526; Ward v. Evans, 2 Salk. 442; 2 Ld. Raym. 928; Thorold v. Smith, 11 Mod. 88; Conn v. Penn, Peters, C. C. 496; Loraine v. Cartwright, 3 Wash. C. C. 151; Richmond Manuf. Co. v. Starks, 4 Mason, 296; Armstrong v. Gilchrist, 2 Johns. Cas. 424; Bank of Columbia v. Patterson's Adm'r, 7 Cranch, 299; Rogers v. Kneeland, 13 Wend. 114; Terril v. Flower, 6 Martin (La.), 583; Baker v. Byrne, 2 Sm. & M. 193; Conant v. Bellows Falls Canal Co., 29 Vt. 263 (1857). But see contra, Cady v. Shepherd, 11 Pick. 400; Story on Agency, § 49 and note; ib. § 242, 252, 2d ed.; Story on Part., § 122, and note; Brigham v. Peters, 1 Gray, 139. See Gulick v. Grover, 4 Vroom, 463; Drakely v. Gregg, 8 Wall. 242.
2 Soames v. Spencer, 1 Dowl. & Ryl. 32. See also Maclean v. Dunn, 4 Bing. 722; Johnson v. Smith, 21 Conn. 627; Byrne v. Doughty, 13 Ga. 46.
3 Armstrong v. Gilchrist, 2 Johns. Cas. 424.
4 Forrestier v. Bordman, 1 Story, 43; Hastings v. Bangor House Proprietors, 18 Me. 436; Moss v. Rossie Lead Mining Co., 5 Hill, 137.
5 McConnell v. Bowdry, 4 Mon. 392; Veazie v. Williams, 8 How. 134; Wallace v. Morgan, 23 Ind. 399 (1864); Toledo, etc, Ry. Co. v. Prince, 50 111. 26 (1869); Farwell v. Howard, 26 Iowa, 381 (1868); McCulloch v. McKee, 16 Penn. St. 289.
§ 244. There is, however, one important modification of this rule, - namely, if the act of the agent be void, or if it be illegal or directly injurious to another, no subsequent ratification will render it operative. But if it be merely voidable, a ratification will have the same effect as a prior authority, and give it full authority ab initio5 Thus, if an agent, without authority, make a purchase of goods, and give a bought note therefor, and the principal, after full knowledge of the transaction, ratify it, such a ratification will render the signing of the note valid under the statute of frauds, so as to bind both parties.6
§ 245. There is, however, an exception to this doctrine, which obtains in cases where the act of the agent, if authorized, would create an obligation on the part of third persons to perform certain acts and duties, the omission of which would operate to their injury; or where it would defeat a right or estate already vested in such third person.1 In such cases, a subsequent ratification of the unauthorized act will not bind the third person.2 Thus, where a lease contained a condition that either party might determine it upon six months' notice; notice by an unauthorized agent of the landlord was held not to be valid to determine the lease, although subsequently ratified by the principal.3 So, also, notice or demand of payment of a bill of exchange or promissory note, by an unauthorized person, would not render the party liable in damages for his default, although such notice or demand should be ratified by the holder.4 So, also, notice of the dishonor of a note or bill of exchange by a stranger would not be a notice which would bind an indorser or drawer.5
1 2 Greenleaf on Evidence, § 67. See Bank of Orleans v. Fassett, 42 Vt. 432 (1869).
2 Palmerton v. Huxford, 4 Denio, 166.
3 Foster v. Swasey, 2 W, & M. 217. See Lyman v. Norwich University, 28 Vt. 560 (1856); Crans v. Hunter, 28 N. Y. 389.
4 Woodward v. Harlow, 28 Vt. 338 (1856).
5 Co. Litt. 295 6, 306 6, Hargr. & Butler's note; Gilb. on Tenures, 75; Dyer, 263, pli. 37; Com. Dig. Confirmation; 1 Story, Eq. Jur. § 306; Wilkinson v. Leland, 2 Peters, 661, 662; Vernon's Case, 4 Co. 2 6.
6 Maclean v. Dunn, 4 Bing. 722.
§ 246. A principal must either adopt the whole transaction of a person acting without authority or refuse the whole. He cannot "blow hot and cold;" and therefore, if he treat a party as his agent in respect to one part of a transaction, he thereby ratifies the whole of it.6 Thus, he cannot adopt a sale, made by his agent, without authority, and yet refuse to be bound by the representations of the agent made at the time of the sale.7 And if a principal ratify a contract by his agent, he incurs the same liabilities as if he had originally authorized it.1 So, if an undisclosed principal adopt a contract made by his agent, he must adopt it in omnibus; and if, for instance, it were coupled with an agreement that the defendant should have a right to set off a debt due to him from the agent, the principal must take the contract subject to the agreement for the set-off.2
1 See Bird v. Brown, 14 Jur. 132; 4 Exch. 786.
2 Paley on Agency, by Lloyd, 190, and note c, 345, 347; Co. Litt. 258 a; Fitchet v. Adams, 2 Str. 1128; Goodtitle v. Woodward, 3 B. & Al. 689; Right v. Cuthell, 5 East, 491; Doe V.Walters, 10 B. & C. 626; Story on Agency, § 246, and note 2; Solomons v. Dawes, 1 Esp. 83; Coore v. Callaway, 1 Esp. 115; Coles v. Bell, 1 Camp. 478, note.
3 Right v. Cuthell, 5 East, 491; Doe v. Goldwin, 2 Q. B. 143.
4 Freeman v. Boynton, 7 Mass. 483; Bank of Utica v. Smith, 18 Johns. 230; Chitty on Bills, ch. 9, p. 396, 8th ed.
5 Tindal v. Brown, 1 T. R. 167; Stanton v. Blossom, 14 Mass. 116; Story on Bills of Exchange, § 303, 304; Hovil v. Pack, 7 East, 164; Smith v. Hodson, 4 T. R. 212; Ferguson v. Carrington, 9 B. & C. 59; Corning v. Southland, 3 Hill, 552; Billon v. Hyde, 1 Atk. 128; Story on Agency, §250.
6 Hough v. Richardson, 3 Story, 689; Wilson v. Poulter, 2 Str. 859; Hovil v. Pack, 7 East, 164; Daniel v. Mitchell, 1 Story, 172; Small v. Attwood, Younge, 407; s. c. on appeal, 6 Clark & Finn. 232; Mundorff v. Wickersham, 63 Penn. St. 87 (1869).
7 Hough v. Richardson, 3 Story, 689; Crans v. Hunter, 28 N. Y. 389.