Another way in which the relation of broker and principal may be created is by ratification. If the broker enters upon negotiations without authority from the owner the latter, on learning of it, may confirm or adopt the acts. Such a ratification relates back, and is equivalent to prior authority. As we shall look at the question of ratification only from the standpoint of the broker's right to commissions in case his acts are ratified, we shall not need to enlarge on the rights of third persons to hold the principal upon a ratification.
As stated in Clark on Contracts, 719, the general rules applicable to ratification require that the agent must have contracted as agent and not on his own account; that the principal must have been in contemplation, or at least ascertainable at the time; that the principal must have been in existence; that the contract must be lawful and must have been such as the principal had legal capacity to make, and that the ratification must be with a full knowledge, actual or constructive, of all the material facts.
14 Harrell v. Veith, 13 N. Y. St. Rep. 738 (1888).
15 Charles v. Cook, 88 App. Div. 82 (N. Y. 1903); Watkins Co. v. Thetford, 96 S. W. 73. 74 (1906) ; Mercantile Trust Co. v. NlgKeman. 119 Mo. App. 56 (1906). 16 Pollatschek v. Goodwin, 17 Misc. 591 (N. T. 1896).
As we have seen,17 to entitle a broker to recover commissions for effecting a sale it is indispensable that he should show that he was employed to make the sale. A ratification of his act, where original employment is wanting, may, in some circumstances, be equivalent to an original retainer, but only where there is a plain intent to ratify.18 An owner cannot be enticed into a liability for commissions against his will.19 Ratification, however, implies a knowledge of the circumstances, and also of the right to reject or ratify.20
Where there was no employment and the owners sold the property to a person with whom the broker was negotiating almost two years before, and who at that time had made an offer through the broker, there is no ratification of an employment of the broker alleged to have been made by the owners' agent, especially where the owners knew nothing about any claim of the broker.21
It may be seen that confusion may easily arise in the consideration of this matter. One of the essentials requisite for the recovery of broker's commissions is employment. A mere volunteer who brings a customer to a vendor, whom the latter, without further acceptance of the broker's services, takes, is not entitled to compensation,22 while, on the other hand, where original employment is wanting, a ratification of the broker's acts may become equivalent to an original retainer, where there is a plain intent to ratify.23 It is therefore this which distinguishes the two situations, - in the one case, the vendor takes the purchaser but refuses to recognize the broker because not engaged to make the sale, while in tin-other case the vendor takes the purchaser produced by the broker, though not engaged to find one, and manifests in some way his intention to ratify what the broker did. It may be seen how differences of opinion may easily arise, not only in the minds of juries, but with judges and lawyers as well, as to whether the vendor treated the broker as a "volunteer" or ratified his acts.
17 Sec. 104-107 supra.
18 See Wilson v. Dame, 58 N. H. 392 (1878) ; Downing v. Buck, 135 Mich. 639 (1904).
"Benedict v. Pell, 70 App. Div. 45 (N. Y. 1902).
20 King v. Mackellar, 109 N. Y. 223 (1888).
²ıConn v. Lee, 132 App. Div. 097 (N. Y. 1909).
²² Sec. 104-107 supra.
²³ Sec. 104, 106, 109 supra; Sec. 112 infra.