Forsyth v. Day , 46 Me. 176 ( 1858 )

The opinion of the Court was drawn up by

May, J.

This case, being the same which was once before presented to this Court, as appears in the Maine Reports, vol. 41, p. 882, comes before us again upon exceptions taken to the rulings of the presiding Judge at the last trial; and also upon a motion to set aside the verdict as against the weight of evidence. It is apparent, from the whole evidence as now presented, that Daniel Day, the only excepting defendant, if he can be held liable upon the note in suit, must be so held either upon the ground that he authorized his signature to be placed upon it as a joint promisor with Adoniram J. Day; or that the same, having been placed there without any previous authority, he, in some way, subsequently ratified or adopted it as his own; or because he is somehow estopped by his words or conduct from denying the genuineness of his signature thereon.

In relation to the question of previous authority, the jury were instructed “ that if the defendant, Daniel Day, had given Adoniram J. Day authority to make notes and put thereon his (Daniel’s) name, as a party thereto, and to put notes thus executed into general circulation, as bearing his (Daniel’s) genuine signature, and had not, at the date of the note in suit, revoked such authority, and Adoniram, acting upon such authority, executed said note and passed it to the plaintiff as the note of Daniel, bearing his genuine signature, and it was received by the plaintiff as such, Daniel would be bound thereby.”

That this instruction is sufficiently guarded to protect the rights of the excepting defendant, and in harmony with law and justice, there can be no doubt. It is simply an enunciation of the common maxim, qui facit fer alium, facit per se ; than which, as a general proposition, there is no rule, either in law or morals, better established.

A more important question is, whether the case discloses sufficient evidence to lay a basis for, or to require the instruction given.

The authority to which the instruction relates, may be express or implied. It is express when directly conferred by the principal to the agent, either verbally or in writing; and implied when it arises from facts and circumstances, admitted or proved, which are inconsistent, upon the ordinary principles of human action, with any other theory than that of such authority, and from which its existence may reasonably be inferred.

It is not contended, on the part of the plaintiff, that there is any direct proof of such express authority. The argument is, that, from the facts which are proved, the jury were well authorized to find, that the signature of Daniel Day was placed upon the note by Adoniram, and the note put into circulation by him, with Daniel’s permission; and that such permission was fairly to be implied, from the acts and conduct of Daniel, with reference to other notes of the same character, previously put into circulation, and from his acts and conduct with reference to the note in suit.

The note in suit is dated October 16, 1854, and there is testimony tending to show that, in the year 1852, one or two notes, if not more, were put into circulation by Adoniram with the signature of Daniel thereon, and, that these notes were either shown or described to him, and he admitted they were right, although, subsequently, he seems to have denied the genuineness of his signature thereon. To the admissibility of these notes, and the testimony thereto relating, the defendant objected, but they were admitted by the presiding Judge, and, we think, rightfully. It certainly was proper that the jury should know something of the dealings and relationship between these defendants, prior to the giving of the note in suit. If, upon the one hand, it could be made to appear that they had had no dealings with, or confidence in each other, or, upon the other hand, that an unlimited confidence had existed between them, the jury, in the light of such facts, would be the better enabled to determine upon the force, and effect of the other facts proved, in their bearing upon this question of authority.

If extended business relations had subsisted between them, and large confidence had often been placed in Adoniram by Daniel, in relation to his manner of doing business, and the jury were satisfied that Adoniram had occasionally placed the name of Daniel upon notes of hand, and put them in circulation, and these facts came to the knowledge of Daniel, and he recognized and treated them as valid, can it be, that in determining whether Daniel had conferred upon Adoniram authority to make and put in circulation such notes, or any subsequent one, the jury should be shut out from the light, which the former dealings and confidence between these parties would afford ? We think not. The notes testified to by Thaddeus Weeks and Eobert Kennedy, and the facts relating to them, were therefore properly admitted as bearing upon the question of the authority of Adoniram to affix the name of Daniel to the note in suit and to put it in circulation. The weight of this evidence was wholly for the jury, but, when taken in connection with the testimony of Mr. Converse, in regard to the acts and conduct of Daniel, when the note in suit was presented to him for payment, we cannot say that the verdict of the jury upon this point furnishes any such evidence of bias, partiality, corruption or mistake on their part, as will authorize us to set aside their verdict as against the weight of evidence.

If an authority to execute and use such notes had not been given, it is difficult to account for the silence and conduct of Daniel upon their presentment for payment. It would have been more consistent with his honor and integrity as a man of business, to have repudiated, at once, such paper, if forged, than to attempt to shield the forger, even though the offender might be a brother. His pecuniary interests would also have prompted to this. We do not say, that a man might not remain silent under such circumstances, but whether the excepting defendant did so, in the case before us, or was silent because he had given his brother authority to sign and put such notes into circulation, was properly left to the jury, in view of all the facts in the case. If Adoniram had such authority, it is of no consequence whether the plaintiff knew it or not; nor is it important, upon this point, whether the plaintiff regarded Daniel’s signature as genuine or as affixed by another with his permission.

If Daniel’s signature was placed upon the note in suit, and the note put into circulation with his authority, in fact, the effect is precisely the same, whether such authority was express or implied.

When a person assumes authority to act, when in fact no such authority exists, and the assumed principal lies by and sees his name used under such circumstances, to the prejudice of innocent parties, and does not subsequently intentionally ratify or adopt those acts, still he may, under certain circumstances, be estopped from denying such authority. If a man will remain silent when he ought to speak, he will not be permitted to speak when he ought to remain silent. In such cases, as the authorities cited in defence fully show, it must appear, before the assumed principal can be charged, that the other party was induced to act, or did act to his own prejudice, by reason of the acts and conduct of the party attempted to be charged, or, in other words, on the faith that such acts and conduct were in fact what they assumed to be. It would be a reproach to the law, if a man could be permitted to lie by and see another act to his injury, upon the faith of his conduct and acts, which he knew were calculated to mislead him, and then turn round and say that he did not intend that which his conduct and his acts fairly indicated. No instruction upon this point was asked or given.

The jury were further instructed that if Daniel, after he had knowledge that his name had been put upon the note in suit, as a maker, ratified and adopted the same, he would be bound thereby, although his name was originally placed upon said note without authority. The soundness of this instruction is not questioned. The words ratified and adopted, as contained in it, seem to have been used as synonymous, and, in fact, a ratification is but the adoption of an act purporting to be the act of the party adopting it. It is not necessary, as is contended in defence, that the act which is ratified or adopted, should have been originally done solely on the account of the party adopting it, or for his benefit. It is sufficient if it be, apparently upon its face, his act. If this appear, it will be competent for the apparent party to make it his own. The signature of Daniel Day, upon the note in suit, purported to be his own. He might, therefore, rightfully adopt it as such; and, if he did so, nothing is better settled than that such ratification binds him from the date of the note, and not merely from the time of the ratification.

It becomes unnecessary to consider whether the jury were authorized, from the evidence in the case, to find that the signature of Daniel Day, to the note in suit, was ratified and adopted by him as his own, for two reasons; first, because the jury may have found for the plaintiff upon the ground of previous authority; and, secondly, because the presiding Judge instructed the jury that, “if they should find that Daniel Day, when the note was presented to him by Converse, for the purpose of giving him to understand that his, Daniel’s, signature thereon was genuine, used language, or conduct, calculated to induce such belief, and Converse was thereby actually induced to believe the signature genuine, it would constb tute an adoption thereof, though the real intention of Daniel was only to gain time, for the purpose of making some arrangement to avoid the exposure of the criminal conduct of his brother, and did not intend to adopt the signature as his own,” ox*, in other words, that such language and conduct, under the circumstances named, would be conclusive evidence of a ratification or adoption, in fact, notwithstanding no such thing was intended.

A contract necessarily implies, in its making, the assent of the parties to be bound by it, and such assent cannot exist in fact without corresponding intention. A contract, therefore, cannot exist without the intention of the party, either express or implied, to make it. It is not his contract until he has in some way intentionally assented to it. He may, however, by his conduct, as we have already seen, bind himself so far that he will be estopped to deny the validity of the contract. So, also, in the case of a subsequent ratification or adoption of a contract, made in his name without authority, such ratification or adoption cannot exist, in fact, without or against the intention of the party to be bound by it. The party, however, may, by his conduct, estop himself from denying an intention to ratify or adopt it.

The distinction between a contract intentionally assented to, or ratified in fact, and an estoppel to deny the validity of the contract, is very wide. In the former case, the party is bound, because he intended to be; in the latter, he is bound notwithstanding there was no such intention, because the other party will be prejudiced and defrauded by his conduct, unless the law treat him as legally bound. In the one case, the party is bound because this contract contains the necessary ingredients to bind him, including a consideration. In the other, he is not bound for these reasons, but because he has permitted the other party to act to his prejudice under such circumstances, that he must have known, or be presumed to have known, that such party was acting on the faith of his conduct and acts being what they purported to be, without apprising him to the contrary.

The presiding Judge, in the instruction now under consideration, makes any words or conduct, at the time the note was presented for payment, on the part of Daniel Day, calculated to induce the belief that his signature to the note was genuine, and actually having and intended to have that effect in the mind of Mr. Converse, the plaintiff’s attorney, conclusive proof of the adoption of the note, notwithstanding he did not, in fact, intend to adopt the signature as his own. That this testimony was important upon the question of adoption, there can be no doubt, but its weight was for the jury. The fact that the plaintiff’s attorney was intentionally induced to believe the signature to be genuine, did not make it such, unless Daniel intended to ratify and adopt it as such. If he did, it became his note. If he did not, the fact that he intentionally created such belief, in the mind of the attorney, would not necessarily, much less, conclusively, make the note his; and, if the plaintiff suffered no detriment from the induction of such belief, the excepting defendant would not be estopped from showing that he did not intend to make the note his; and, without this instruction, the jury might possibly have found, in view of the evidence or facts referred to by the Judge, that it was not such. Hall & al. v. Huse, 10 Mass. 39.

If it be said, that the presiding Judge intended, by the language used, that these facts would be equivalent to an actual adoption of the note, and so the defendant, Daniel Day, would be estopped from denying it, whether he intended it or not, then there would be an infirmity in the instruction, in omitting to state that, before such estoppel could exist, it must appear that the plaintiff had been in some way prejudiced or suffered detriment by acting or omitting to act by reason of such belief. Roe v. Jerome, 18 Conn. 138; Dezell v. Odell, 3 Hill, 220; Richard v. Sears, 6 Add. & Ell. 469; and Cummings, Adm’r, v. Webster, 43 Maine, 192.

Whatever view, therefore, we take of this instruction, it is found to be erroneous, and, for this cause, a new trial must be granted. As the cause is to be again tried, we deem it not improper to remark, that we see no error in the refusal of the Judge to give the several requested instructions which were not given, relating as they do to the effect and sufficiency of certain evidence, and not to matters of law; nor in the admission of the disclosure of Daniel Day, referred to as a part of the case, so far as it related to his taking security of Adoniram J. Day for general liabilities, and beyond this it was excluded.

Exceptions sustained and new trial granted.

Tenney, C. J., and Rice, Hathaway, and Appleton, J. J., concurred.