§ 241. In the next place, as to the defences of agents against their principals. If an agent conform to all his duties, as stated in the foregoing pages, he will not be responsible to his principal for any losses accruing from his agency.3 So, also, although he do not exactly comply with his instructions, yet if his deviations therefrom be justified by the necessity of the case; as where a literal compliance therewith would have frustrated the object of the agency, and been injurious to the interest of his principal;4 or if the subject-matter of his agency be founded in immorality, illegality,5 or fraud, or contravene the principles of public policy; 6 or if his neglect or violation of his duties and instructions do not occasion the loss or injury actually sustained; or if the instructions were so given as to have misled him;7 he will not be responsible therefor. In every case there must be both an injury and a wrong, in order to sustain an action thereupon, and damnum absque injuria, or injuria absque damno, is a perfect defence.1
22; Webster v. De Tastet, 7 T. R. 157; Paley on Agency, by Lloyd, 74, 75, 76; Smith v. Lascelles, 2 T. R. 186; Marzetti v. Williams. 1 B. & Ad. 415.
1 Barker v. Greenwood, 2 Younge & Coll. 419, 420; Catterall v. Hindle, Law R. 1 C. P. 186 (1866). See Parsons v. Martin, 11 Gray, 115.
2 3 Chitty on Com. and Manuf. 199; Story on Agency, § 108, 110, 209. See post, Factors. Hutchings v. Munger, 41 N. Y. 155 (1869).
3 See Story on Agency, ch. 9, per tot.
4 Dusar v. Perit, 4 Binn. 361; The Gratitudine, 3 Rob. Adm. 240, 257.
5 But see Murray v. Vanderbilt, 39 Barb. 140, that an agent is bound to pay over money collected for his principal, although upon a contract illegal inter partes.
6 Bexwell v. Christie, Cowp. 395; Webster v. De Tastet, 7 T. R. 157; Simpson v. Nichols, 3 M. & W. 240; 1 Story, Eq. Jur. § 296, 308; 1 Liverm. on Agency, ch. 1, § 2, p. 14 to 22; Thomson v. Thomson, 7 Ves. 470; Cannan v. Bryce, 3 B. & Al. 179; Langton v. Hughes, 1 M. & S. 593; Le Guen v. Gouverneur, 1 Johns. Cas. 436; Edgar v. Fowler, 3 East, 222; Bryan v. Lewis, Ry. & Mood. 386.
7 Pickett v. Pearsons, 17 Vt. 470.
§ 242. The most complete and important defence, however, which can be made by an agent, is, that the principal has ratified his acts and omissions; for a subsequent sanction has the same effect as a prior order. The maxim of the common law is, "omnis ratihabitio retrotrahitur et mandato wquiparatur; " and a ratification, when once made deliberately, becomes instantly obligatory, and cannot be afterwards revoked.2 A ratification must be made by the principal; an agent cannot ratify the unauthorized act of another, at least when he cannot delegate his power.3
§ 243. A ratification must, however, be made with a full knowledge of all the facts and circumstances, or it will not be obligatory on the principal, although such facts or circumstances may have been innocently concealed, or inadvertently misrepresented.4 Where the agent acts in the name of his principal by an instrument under seal, the general rule is, that the ratification should also be under seal.5 Yet if the agent should affix a seal to his contract when none was necessary, a parol ratification would render the contract binding as a simple contract.6 But when the contract by the agent is not under
1 Paley on Agency, by Lloyd, 19, 20, 21, 75, 76; Delaney v. Stoddart, 1 T. R. 22; Webster v. De Tastet, 7 T. R. 157.
2 Smith v. Cologan, 2 T. R. 188, note; Clark's Ex'rs v. Van Riemsdyk, 9 Cranch, 153; Bigelow v. Denison, 23 Vt. 565; Moss v. Rossie Lead Mining Co., 5 Hill, 137; Frixione v. Tagliaferro, 10 Moore, P. C. 174.
3 Hill v. Canfield, 63 Penn. St. 77 (1869).
4 Story on Agency, § 239, and cases cited; Wolff v. Horncastle, 1 Bos. & Pul. 320, 324; Copeland v. Mercantile Ins.Co., 6 Pick. 198; Conn v. Penn, Pet. C. C. 496; Horsfall v. Fauntleroy, 10 B. & C. 755; Bell v. Cunningham, 3 Peters, 69, 81; Lazarus v. Shearer, 2 Ala. 718; Freeman v. Rosher, 13 Q. B. 780; Penn., Del., etc, Navigation Co. v. Dandridge, 8 Gill & J. 248; Pittsburgh & S. R. R. Co. v. Gazzam, 32 Penn. St. 340 (1858); Billings v. Morrow, 7 Cal. 171; Combs v. Scott, 12 Allen, 493.
5 Bloodgood v. Goodrich, 9 Wend. 68; s. c. 12 Wend. 525; Hanford v. McNair, 9 Wend. 54; Story on Agency, § 49, 242, 252; Despatch Line of Packets v. Bellamy Man. Co., 12 N. H. 205. See Mclntyre v. Park, 11 Gray, 102.
Worrall v. Munn, 1 Selden, 229; Mitchell v. St. Andrew's Bay Land seal, it is not necessary that the ratification should be express and formal, but it may arise by implication from collateral circumstances, from the acts of the principal, or the habits of dealing between the parties, and even from his silence and acquiescence, when it was incumbent on him to object, or when the presumption of a ratification is the only satisfactory explanation of such a silence.1 Thus, where A. and B. being jointly interested in a quantity of oil, A. entered into a written contract for the sale of it, without B.'s permission, who refused, at first, to be bound by it; but afterwards, in an altercation with the purchasers, B. acquiesced and said, " Well, then, the oil must be delivered," this was held to be a ratification.2 So, also, where an agent, without authority, compromised a debt of his principal, who after knowledge of the fact, made no objection, and acquiesced for a length of time in the act, he was held to be bound. So, also, if an owner should receive the proceeds of a sale by his supercargo, without objection, it would be a ratification of the sale.4 Indeed, silence always affords a strong presumption of ratification;5 especially where there are peculiar relations between the parties, such as that of husband and wife, or father and son, where the duty of disavowal is more urgent.1 So, also, where a party, having a disputed claim against another, intrusted a receipt in full to his agent, and the latter settled with the debtor for one-half the amount, and gave him the receipt, and the principal received the money, and sued the debtor for the balance, it was held, that, by receiving the money, he had ratified the act of his agent.2 And, a fortiori, when a principal knowingly receives the receipts and proceeds of a contract made by an agent, he makes it his own by implication, so that, in such case, if the agent had been guilty of fraudulent assertions, the principal would be liable thereon; for, qui sentit commodum sentire debet et onus.8 And a ratification may be made after the principal has expressed disapprobation of the act.4