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Berwick v. Dusenbury

2 Daly (N.Y.) 107 Court N.Y.C.P. English

Delivered by *108 By the Court.—Brady, J.

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p. 107
Mary M. Berwick and others v. Charles Dusenbury and wife.

Headnote

There is nothing growing out of the relation of husband and wife which prohibits the latter acting as the agent of her husband.
Where a married woman, in the absence of her husband and without any express authority, had hired apartments for a year from, and taken possession on, the 1st of May, and her husband, returning on the 6th, occupied the apartments with her up to the 23d or 24th day of that month, when they left,—Held, that the husband was liable for the rent, as having, by his delay in not repudiating the contract made by his wife, adopted and ratified it.
Appeal by the defendants from a judgment of the Seventh District Court. The action was brought for rent for the month of June, 1866, of certain premises, which had been hired by Mrs. Dusenbury, in the absence of her husband and without his authority, from the plaintiffs, for one year from May 1, 1866, on which day she went into possession. Her husband returned on the 6th day of the same month, and, without notifying the plaintiffs that he repudiated the contract of his wife, occupied the premises with her till May 23 or 24, when they vacated the premises. The justice rendered judgment for the plaintiffs for the full amount claimed, from which judgment the defendants appealed.
Ira D. Warren, for the appellants.
A. H. Reavy for the respondents.

It may be assumed that the defendant’s wife had no authority, express or implied, to hire the premises from the plaintiff, and yet the judgment rendered herein must be sustained. The defendant’s wife took possession of the premises on the 1st of May, 1866, and the defendant, when he returned on the 6th of May ensuing, also went into possession of them, and remained until the 23d or 24th of the same month. He did not, for aught that appears, during his occupancy in any manner advise the plaintiff or his agent that his wife had acted without authority, and that he did not intend to ratify the contract-she had made, nor did he do any act indicative of a similar intent. He said on the trial that he refused to keep the premises, and moved out on the 23d or 24th of May. His removal was too late. He had, by his delay, ratified the contract made by his wife. The doctrine on that subject is clearly stated in Story on Contracts, section 161, on the authority of adjudged cases, as follows: “ It is not necessary that the ratification should be express and formal, unless the agent act in the name of the principal by an instrument under seal, in which case the ratification must also be under seal, but it may arise by implication from collateral circumstances, from the acts of the principal, or from his silence and acquiescence when it was incumbent on him to object, or when the presumption' of a ratification is the only satisfactory explanation of such silence.” There is nothing growing out of the relation of husband and wife which prohibits' the latter from acting as agent of her husband, and, if her act as such be approved, that approval is equivalent to an original authority (Hopkins v. Molineux, 4 Wend. 465 ). It makes no difference where the act has been adopted, whether the person acting for another was authorized, but exceeded his power, or assumed to be authorized, when, in fact, he was not clothed with power directly or indirectly (Story on Agency, § 253; Nixon v. Palmer, 8 N. Y. 398 ; Commercial Bank v. Warren, 15 N. Y. 577 ; Wilson v. Turnman, 6 Mann. & Gran. 236), and as we have seen that the principal may be held to have assumed the obligation made for him by his silence or acquiescence, he is required to disavow the act done in his name within a reason

p. 109
able time (Cairnes v. Bleecker, 12 Johns. 300 ; 2 Kent’s Com. 616; Benedict v. Smith, 10 Paige, 127; Vianna v. Barclay, 3 Cowen, 281; Gage v. Sherman, 2 N. Y. 417 ; Bridenbecker v. Lowell, 32 Barb. 9 ), and particularly where, as in this case, he availed himself of the benefit of the contract made for him, by occupying the premises. When the act done for another is apparently for his benefit, slight evidence should serve to establish a ratification (Commercial Bank v. Warren, supra, p. 579 ). There seems to be great propriety in applying such a rule strictly to a case like the present, in which it appears that the wife, during the absence of her husband, hired a dwelling, which may be classed as one of the necessaries of life. In this case, however, the ratification is abundant. The defendant followed his wife to the premises hired and occupied by her, and remained there, as already shown, for eighteen days. These were acts from which no other conclusion was to be drawn by the landlord than that he intended to remain for the term secured. As said by Strong, J., in Gage v. Sherman, supra, “if the defendant intended to object to the terms of sale he should have acted promptly. The plaintiff might then have taken his land back, and, probably, without loss.” The justice, in this case, held, that the delay of the defendant, in reference to the repudiation of the contract, having taken possession of the premises as he had, was unreasonable, and we think it was. He should have acted promptly, and restored the possession to the landlord.

The judgment should be affirmed.

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