Cohen v. Jackson

96 N.E. 669, 210 Mass. 328, 1911 Mass. LEXIS 1064

• Court: Massachusetts Supreme Judicial Court
• Decided: November 29, 1911
• Status: Published

Opinion

Braley, J.

The executory contract for the specific performance of which the bill is brought is sufficient in form to satisfy the requirements of R. L. c. 74, § 1, cl. 4, but unless executed and delivered by the defendant’s authority it cannot be enforced.

The defendant, who was the owner, employed one Ingalls, a real estate broker, to sell the property but no instructions were given to him as to the price or terms of sale. It was after negotiations by the agent with the plaintiff that a sale was effected and the contract in question, signed by the agent in behalf of the defendant, was delivered.

If it be assumed that the oral authority would have been sufficient to enable him to make a written contract or a memorandum for the sale of real estate as required by the statute of frauds, and to do all necessary acts connected with his employment which would embrace a sale as proposed, the evidence has not been reported, and, the judge having found “ as a fact . . . that he was not so authorized,” the finding should not be set aside, as it does not appear to have been plainly wrong. Shaw v. Nudd, 8 Pick. 9. Duncklee v. Webber, 151 Mass. 408. Lobdell v. Baker, 1 Met. 193. Deane v. American Glue Co. 200 Mass. 459. New York & Colorado Mining Syndicate v. Fraser, 130 U. S. 611. Collen v. Gardner, 21 Beav. 540. Cohen v. Nagle, 190 Mass. 4.

The plaintiff accordingly is forced to rely on the defendant’s adoption of Ingalls acts. If ratification of the unauthorized acts of an agent by the principal appears, it is equivalent to original authority. Bayley v. Bryant, 24 Pick. 198. The findings of the judge, however, upon this question very plainly show, that while the defendant was put in possession of most of the essential details of the transaction, he never was informed that the agreement had been reduced to writing or that a partial payment of the purchase price had been received from the plaintiff. It could become an existing and binding contract only upon the defendant’s approval, not of a part, but of the entire instrument. New England Dredging Co. v. Rockport Granite Co. 149 Mass. 381. Revere Water Co. v. Winthrop, 192 Mass. 455.

The judge therefore properly ruled that the ratifier must be informed of all which had been done in his behalf, and that the omission of information as to these material particulars was fatal.

Decree affirmed.