McIntyre v. Park

77 Mass. 102

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1858
• Status: Published

Opinion

Metcalf, J.

We express no opinion on the question whether the sum of five hundred dollars, mentioned in the agreement upon which this action is brought, is a penalty or liquidated damages. That point was ruled in the defendant’s favor, and the plaintiff has not excepted to the ruling.

The evidence of the defendant’s ratification or adoption of the agreement executed in his name was rightly admitted ; and he, by such ratification or adoption, became answerable for a breach of that agreement. Merrifield v. Parritt, 11 Cush. 590. In that case, the agreement was not under seal; and the defendant contends that a sealed instrument, executed without previous authority, can be ratified only by an instrument under seal. However this may be elsewhere, by the law of Massachusetts such instrument may be ratified by paroi. Cady v. Shepherd, 11 Pick. 400. Swan v. Stedman, 4 Met. 548. See also 1 Amer. Lead. Cas. (4th ed.) 450 ; Collyer on Part. (3d Amer. ed.) § 467 ; Story on Agency, (5th ed.) §§ 49, 51, 242 & notes; McDonald v. Eggleston, 26 Verm. 154. The cases in which this doctrine has been adjudged were those in which one partner, without the previous authority of his copartners, executed a deed in the name of the firm. But we do not perceive any reason for confining the doctrine to that class of cases.

We cannot see that the jury ought to have been instructed to find only nominal damages. It does not appear that all the evidence as to damages is set forth in the bill of exceptions. The instructions on that subject seem to us to have been right; and if the jury assessed larger damages than the evidence legally warranted, the defendant should have moved for a new trial on that ground. We must suppose, in this stage of the case, either that there was evidence of damages, which is not reported, or that the jury judged, from the nature of the case, what was the amount of the damages which the plaintiff had sustained — as they always do in those actions in which general damages only are claimed in the plaintiff’s declaration, and in which the law has prescribed no fixed rule of damages.

All the other rulings and instructions, to which exceptions have been alleged, we think were correct; and we deem it unnecessary to do more than simply to affirm them.

Exceptions overruled.