Miller v. Board of Education

44 Cal. 166, 1872 Cal. LEXIS 172

• Court: California Supreme Court
• Decided: July 1, 1872
• Docket: No. 2,783
• Status: Published

Opinion

By the Court, Niles, J.:

It is urged by the appellant that “ the ratification relied upon was a single act, and if void in part was void as to the entire bill, even if there had been an intention on the part of Miller to ratify the act as to some of the items;” and an instruction to that effect was asked by the plaintiff and refused by the Court. The vice of the instruction lies in the assumption that the ratification was void at all. Hill had paid to Avery more than plaintiff had intended to authorize him to pay, and the ratification of this act by the plaintiff was made under the mistaken belief that he was settling only for the lumber furnished for the school house. The ratification was voidable to the extent of the mistake, and the plaintiff" could be relieved pro tanto. It is as if one should by mistake contract to pay to a creditor a sum larger than he really owed. He could be relieved froih the payment of the excess, but would be held for the sum really due.

The record discloses no material error to the prejudice of the appellant.

' Judgment and order affirmed.