(This opinion is written after a rehearing).
Bruce, J.
(after stating the facts as above). The principal ground for a reversal which is urged by the defendant in this case, and which was apparently urged upon the motion for a new trial, is that the evidence does not show that the check came into the possession of the plaintiff before the time of the alleged conversion, and [268] that therefore the action of trover will not lie. It is contended that, ne delivery having been made, the check at such time was the property of the maker, and not of plaintiff, and that the plaintiff, therefore, has no ground of complaint, ,as the liability of such maker to her is still existing, the debt never having been paid. This objection, however, comes too late. The case was twice tried, and the point does not appear to have been raised until the motion for a new trial was made in 'the second action.
The delivery of the check to the plaintiff or to her agent, and her right to the possession thereof at the time of its payment by the defendant bank, is admitted by the answer; for, although the answer denies the allegations of the complaint, “except as herein expressly admitted, qualified, or explained,” it expressly alleges that the check “was-cashed for the plaintiff at the plaintiff’s special instance and request, and the money paid to the plaintiff or to the plaintiff’s husband, and that said check was indorsed-and made payable to the defendant as a receipt for said money at plaintiff’s special instance and request, with indorsement made thereon by plaintiff’s husband at plaintiff’s special instance and request and by her authority, and that, the defendant cashed said check by virtue of the authority given by the plaintiff to the plaintiff’s husband to indorse said check, and to receive the money thereon for her use and benefit, and that the defendant cashed said check for the plaintiff as aforesaid in the regular course of business and under an express custom on the part of the plaintiff giving her husband authority to generally cash and indorse her checks for her and to receive the money thereon.”
The question of ownership of the check, and the right to the possession thereof at the time of the alleged conversion, was and is therefore expressly eliminated from the case, and the only question at issue, and in fact the only question that was tried in the district court, was whether the husband had the right to indorse the same, that is to say, whether such indorsement was made with the consent of the wife.
It is now too late to urge that the check had not been received by the plaintiff, or that she was not entitled to the possession thereof, and that therefore the cause of action would not lie. Cushing v. Pires, 124 Cal. 663, 57 Pac. 572; McDougald v. Hulet, 132 Cal. 154, 64 Pac. 278. .It is well established, indeed, that “parties cannot elect to try their [269] causes on one theory in the lower court, and when defeated on that line assume a different position in the appellate court” (3 Cyc. 243), and that “the theory of the case which was adopted by the trial court with the acquiescence of the parties will govern in the appellate court for the purpose of review.” 21 Enc. PI. & Pr. 664; Marshall v. Andrews, 8 N. D. 364, 79 N. W. 851.
It is also quite clear that if a delivery to the plaintiff was in fact made or must be assumed the action of trover will lie, since the defendant bank, in order to reimburse itself for the payment which was made to the husband, transmitted the check and collected the same from its correspondents, who in turn collected it from the drawee bank. So, too, it would seem that a person to whom a check is sent by mail, and which check is intercepted and cashed with a fraudulent indorsement thereon by a third party, may ratify the delivery without ratifying the forged indorsement. “This brings us to the question,” says Mr. Justice Lurton, of the Supreme Court of the United States, then a member of the supreme court of Tennessee, “as to whether this cheek was ever delivered to the complainant; for it is insisted that if there has been no delivery to him that he has no such title to the instrument as will enable him to maintain a suit against the bank. Whether this check was sent to complainant and miscarried, and fell into the hands of a stranger, or whether it was left with the bank to be credited to the complainant, who kept his account there, and by oversight this credit was not given, is all matter of conjecture. How this check ever reached the hank we are unable, from the proof, to determine. All we can say is that we are satisfied that it never came into the hands of complainant. Someone undoubtedly received it from Muse. By suing the bank upon this check, complainant may and does ratify the receipt of the check from Muse. It is as if it had been received by an agent for the use and benefit of the complainant. Omnis ratihabitio retro irahitur el mandato priori cequiparatur — a subsequent ratification has- a retrospective effect, and is equivalent to a prior command. Broom, Legal Maxims, 837. ‘This is a rule,’ says Mr. Broom, ‘of very wide application.’ . . . ‘No maxim,’ remarks Mr. Justice Story, ‘is better settled in reason or law than this maxim; . . . at all events, where it does not prejudice the rights of strangers.’ [Fleckner v. Bank of United States, 8 Wheat. 363, 5 L. ed. 637.] As illustrative of the application of the rule the [270] author cites the case where the goods of A ai*e wrongfully taken and' sold. The owner may either bring trover against the wrongdoer, or may elect to consider him as his agent, and adopt the sale, and bring an action for the price. Smith v. Hodson, 4 T. R. 211. So, in another case it was said: 'That an act done for another by a person not assuming to act for himself, but for such other person, though without any precedent authority whatever, becomes the act of the principal, if subsequently ratified by him, is the known and well-established rule of law. In that case the principal is bound by the act, whether it be for his detriment or advantage, and whether it be founded on a tort or a contract, to the same extent and by and with all the consequences which .follow from the same act done by his previous authority.’ [Wilson v. Tumman, 6 Mann. & G. 242.] Broom, Legal Maxims, 871. The bank is not prejudiced by this subsequent ratification, for it dealt with the check as the property of the complainant, and undertook to pay to him or his order. The effect of this ratification is simply to make the check the property of the complainant. It does not ratify the collection of the check by one whose act in receiving it is subsequently ratified, and agency to receive a check payable to order implies no authority to indorse it in the name of the payee, or to collect it without such indorsement. In the case of Dodge v. National Exch. Bank, a certificate of indebtedness by the government to Dodge was remitted by mail to the paymaster for a check. The mail was robbed, and the certificate presented by the thief to the paymaster, and a check demanded. The latter, without requiring proof of the identity of the holder of the certificate, issued a check payable to Dodge or order, and took up the certificate. The indorsement of Dodge was forged and the check paid. Subsequently Dodge sued the bank and recovered, the court holding that he might ratify the talcing of the check for the certificate, and sue upon it as an accepted check. 20 Ohio St. 234, 5 Am. Rep. 648. See, to same effect, Graves v. American Exch. Bank, 17 N. Y. 207. The decree of the chancellor is reversed, and judgment for complainant, against the bank for the amount of the check, and interest from filing of bill, and all the cost of the cause. See Pickle v. Muse (Pickle v. People’s Nat. Bank) 88 Tenn. 380, 7 L.R.A. 931, 17 Am. St. Rep. 900, 12 S. W. 919.
The cases cited by counsel for appellant, namely, Talbot v. Bank of Rochester, 1 Hill, 295; Garthwaite v. Bank of Tulare, 134 Cal. 237, [271] 66 Pac. 326; Buehler v. Galt, 35 Ill. App. 225, 227, and National Bank v. Millard, 10 Wall. 152, 19 L. ed. 897, in no way hold to a different doctrine. In the last case the action was brought against the drawee bank, and the court merely held that a payee of a check which was intercepted before delivery could not maintain an action against the drawee bank, as there was no privity between him and the bank, the bank’s contract being with the maker of the deposit merely. In the case of Buehler v. Galt, 35 Ill. App. 225, there was no proof that the check ever reached the person to whom it was mailed, and the only question at issue was whether the mailing of it constituted a delivery. The court held that the postoffice in the case was the agent of the sender, and that the debt which it was sent to pay had never been paid. In the case of Talbot v. Bank of Rochester, 1 Hill, 295, Talbot, the owner of a certificate of deposit in the bank of L. caused it to be indorsed with directions that it should be paid to W. & Co., and then transmitted to them by mail, though without their knowledge or request. It never reached W. & Co., and was stolen on its way, and their names forged upon it, after which it came into the hands of the Bank of Rochester, the defendants, in the course of business, who collected the money on it from the Bank of L., supposing themselves to be the owners. But it was held in this case that the owner of a certificate of deposit who indorses it payable to another, and sends it to him by mail and without his knowledge, retains the property in it until the indorsee receives it, and that such a one had the election either to sue the Bank of Rochester, the intermediary bank, in trover as for the conversion of the certificate, or to recover the amount in an action for money had and received. In this case, however, the indorsee of the certificate of deposit, W. & Co., asserted no right of ownership in it, and provided that one who has the right of possession may assert that right, the case is authority for just such an action as is brought in the case at bar. It holds, in short, that an intermediary bank which cashes a check on a forged indorsement, and then collects that check from the drawee bank in order to reimburse itself, has converted that check. We can see no reason why, if no ratification had been made, the owner or payee of the certificate of deposit would have been able to maintain an action of trover against the intermediary bank, the indorsee of such check could not do the same thing, in other words, ratify or accept the delivery, though not the forgery. [272] In the ease of Garthwaite v. Bank of Tulare, 134 Cal. 237, 66 Pac. 326, the questions before us were not considered nor involved.
The only serious question, therefore, is whether a new trial should be ordered on account of the action of the trial court in admitting in evidence plaintiff’s exhibit “C,” which was unquestionably a self-serving declaration, and which was a letter sent by the plaintiff to her attorney in the West on September 24, 1906, and over a year after the cashing of the check, which was some time prior to May 2, 1905, and in which she stated that she had never received the money, and asked to whom it had been sent. There was in the case the. close question of fact as to whether the payment to the husband and the indorsement by him was made with the plaintiff’s consent, and this letter could not, in our opinion, have failed to have had its influence upon the jury. It is true that at the end of the trial the letter was withdrawn, and the jury was instructed to disregard it, but it was not until after the letter had been read to the jury and the poison had been administered. It is true, also, that the letter said nothing about the fact as to whether the indorsement had been authorized, but if the statements therein contained were believed by the jury, such indorsement could not have possibly been authorized, as the import of the letter clearly is that the wife knew nothing of the sending of the money. Otherwise why did she ask to whom it was sent? “I received your letter this evening,” the letter states, “and was horrified to hear that I received my money a year ago, $257.75. Pray, for God’s sake, tell me to whom it was sent. I swear before God I never received one cent.” It is true that at the end of the trial this letter was withdrawn and the jury was instructed to disregard it. We can hardly see, however, how its prejudicial influence could at that late day have been eliminated. To authorize such a procedure in such a case, indeed, and under such a close question of facts and in the face of so apparent a prejudice, and to hold that the withdrawal of the testimony would correct the error, would be to hold that in any and every case a litigant may introduce prejudicial and self-serving declarations, road them to the jury, and then, after the poison has been instilled, correct the error by asking to have the testimony withdrawn.- It is argued, we know, by counsel for the plaintiff that he subjected the cashier of the bank who had testified to obtaining the consent of the wife to the indorsement to a rigorous cross-examination, and that in such exam[273] ination the witness was made to contradict himself. It is also argued that after the jury had retired they asked for a copy of this cross-examination, and that same might be read to them, and that soon after such reading they agreed upon a verdict. From this it is argued that it was the cross-examination of the cashier that was decisive of the case, and not the letter in question. Such a conclusion, however, goes too far and is hardly warranted. The cross-examination of the cashier may have decided one or two or a number of the jurymen, but we cannot presume that it decided or influenced all. We realize that the general rule is that “if inadmissible evidence has been received during a trial, the error of its admission is cured by a subsequent withdrawal before the trial closes, and by an instruction to the jury to disregard it, or even by an instruction to disregard without more, the view being' taken that such an instruction is equivalent to striking the improper evidence out of the case.” There is an exception to the rule, however, which is as well established as is the general rule itself, and that is that “where the evidence thus admitted is so impressive that in the opinion of the appellate court its effect is not removed from the minds of the jury by its subsequent withdrawal, or by an instruction of the court to disregard it, the judgment will be reversed on account of its admission, and a new trial will be granted.” See 38 Cyc. 1441-1443; State v. McGahey, 3 N. D. 293, 55 N. W. 753; Bishop v. Chicago, M. & St. P. R. Co. 4 N. D. 536, 62 N. W. 605; Thomp. Trials, § 723; Armour & Co. v. Kollmeyer, 16 L.R.A.(N.S.) 1110, 88 C. C. A. 242, 161 Fed. 78; Hopt v. Utah, 120 U. S. 430, 30 L. ed. 708, 7 Sup. Ct. Rep. 614; Waldron v. Waldron, 156 U. S. 363, 381, 39 L. ed. 453-458, 15 Sup. Ct. Rep. 383; Throckmorton v. Holt, 180 U. S. 552-567, 45 L. ed. 663-671, 21 Sup. Ct. Rep. 474; Whittaker v. Voorhees, 38 Kan. 71, 15 Pac. 874; Tourtelotte v. Brown, 4 Colo. App. 377, 36 Pac. 73; Taylor v. Adams, 58 Mich. 187, 24 N. W. 864; Foster v. Shepherd, 258 Ill. 164, 45 L.R.A.(N.S,) 167, 101 N. E. 411, Ann. Cas. 1914B, 572; Chicago Union Traction Co. v. Arnold, 131 Ill. App. 599; Sinker v. Diggins, 76 Mich. 557, 43 N. W. 674; Wojtylak v. Kansas & T. Coal Co. 188 Mo. 260, 87 S. W. 506; Chicago, M. & St. P. R. Co. v. Newsome, 98 C. C. A. 1, 174 Fed. 394.
Nor was this error and prejudice waived by the alleged consent of counsel for the defendant to its withdrawal. The record in the ease [274] shows that after the defendant had rested his case the plaintiff moved to withdraw the letter, and at the conclusion of the offer stated, “I do not presume you will have any objection to that,” to which counsel for defendant replied, “No, I haven’t any objection,” and that the court then asked, “You have no objection to that?” and counsel for defendant replied, “No, I have no objection.” From this it is argued that the withdrawal was consented to, and that, therefore, counsel for defendant cannot argue any prejudice. What else, we may ask, could counsel for defendant have done ? If he had objected to the withdrawal of the letter, then counsel for plaintiff would no doubt have argued that he waived the error of its admission and consented to it, and in effect kept such objectionable evidence in the case against plaintiff’s wishes, and that therefore he could not impute prejudice upon what might be termed invited error. . Had defendant, instead of plaintiff, moved to strike out said evidence, and the motion had been granted, the granting of his motion would hardly have waived the error of its erroneous admission. How, then, can consent to its being stricken out on motion of his adversary waive the original error ?
It is true that counsel for the defendant might have stated that he did not object to its withdrawal, but still insisted upon his original objection, but this would have been merely stating what the law implies. The only recourse the court then would have had would have been to dismiss the jury. We hardly, however, think that this should be insisted upon, as the jury, in spite of the erroneously admitted evidence, might have found a verdict for the objector, and in that case the expense and delay of a new trial would have been unnecessary. It is to be remembered that this motion on the part of the plaintiff to withdraw the evidence was made at the end of the ease, where nothing remained but the submission to the jury, and did not occur at the beginning or in the middle of the trial. We are not unaware of the case of Furst v. Second Ave. r. Co. 72 N. Y. 542, which, upon casual reading, seems to express an obiter opinion different from that announced herein. But upon a close examination it will be seen that -the reasoning in the main supports our holding herein. A new trial was granted because of reception of erroneous and prejudicial statements, the effect of which on the jury would not have been overcome by striking out said statements. To quote: “The offer of the plaintiff’s counsel, if accepted, would not have [275] caused the jury to overlook this evidence when théy came'to' consider the case, and it is impossible to say that it did not have some influence upon them.” This is exactly our conclusion and basic reason for reversal.
Nor is there any merit in the contention that the letter was, after all, a part of the res gestee and therefore admissible. It was clearly and palpably a self-serving declaration. It would be hard to imagine a more effective or dangerous one. It was written six months after the alleged payment of the check and after it should have been received. There was ample time and opportunity for reflection and a strong temptation to “the playing of a part.” It was not a spontaneous utterance which was the result of the principal act. It was therefore inadmissible.
We realize, of course, that this case has been twice tried and that the proceedings have been long delayed. Such fact, however, should not be allowed to prejudice the rights of the defendant.
The judgment of the District Court is reversed and a new trial is ordered.