Gross v. Cohen

128 N.E. 714, 236 Mass. 468, 1920 Mass. LEXIS 866

• Court: Massachusetts Supreme Judicial Court
• Decided: November 24, 1920
• Status: Published

Opinion

Jenney, J.

This is an action upon a lease under seal purporting to have been made by Julia Gross, the plaintiff, to Max Cohen, the defendant, and to Max Ruben, who is not a party to this proceeding.

The defendant occupied the demised premises as lessee for five months, and paid the rent accruing under the lease for that time. There was no evidence as to why his occupation ceased. The plaintiff claims that she is entitled to recover the rent for seven months included in the term for which the lease was given, and for which no payment has been made. The defence is based solely upon the contention that the instrument never was properly executed by the plaintiff or in .her behalf.

Even if the person who admittedly signed the lease with the plaintiff's name had no authority so to do, the bringing of this action thereon by the plaintiff constituted a ratification of its execution. The defendant, so far as is shown by the record, had not attempted previous to that time to avoid the instrument, because of any lack of authority in the agent who executed it, if it be assumed, but not decided, that he could have repudiated the lease after he had enjoyed possession mider it. He could not object to a ratification by the plaintiff. Codman v. Hall, 9 Allen, 335. Ripley v. Cross, 111 Mass. 41. Clark v. Gordon, 121 Mass. 330. See Mechem on Agency, §§ 513-524; 21 R. C. L. 922; 5 Am. St. Rep. 109, note. In Massachusetts, instruments executed by one person in behalf of another may be ratified by paroi, even though a seal is necessary for their validity. McIntyre v. Park, 11 Gray, 102. Holbrook v. Chamberlin, 116 Mass. 155. Rand v. Farquhar, 226 Mass. 91, 97. See also Kostopolos v. Pezzetti, 207 Mass. 277; Albiani v. Evening Traveler Co. 220 Mass. 20. The institution of an action in which the plaintiff sought to enforce rights under an instrument purporting to be made in her name was a clear election to be bound by and to rely upon its terms, and consequently, as a matter of law, a ratification thereof. Finney v. Fairhaven Ins. Co. 5 Met. 192. Clews v. Jamieson, 182 U. S. 461,483. Shoninger v. Peabody, 57 Conn. 42. Grafton v. Follansbee, 16 N. H. 450. The instrument could be ratified, although it did not purport to be executed by an agent. Merrifield v. Parritt, 11 Cush. 590. Greenfield Bank v. Crafts, 4 Allen, 447. Bartlett v. Tucker, 104 Mass. 336, 339.

The plaintiff having ratified the lease declared upon, the question of the original authority of the agent to execute it is immaterial. The defendant was not injured by the refusal of his requests, all of which related only to that subject. A verdict could not have been ordered rightly for the defendant for the reasons stated.

Exceptions overruled.