Fowler v. Trull — 8 N.Y. Sup. Ct. 409

Majority

p. 409

AMBROSE FOWLER, Respondent, v. ELSIE TRULL, Appellant.

Headnote

Mamed woman—Unauthorized acts of agent—ratification of—Neglect to read paper hefoi'e signing it—effect of paper not avoided hy.

The husband of defendant, who was the owner of a separate estate, purchased certain merchandise and took a bill of sale of the same in her name, without her knowledge and without authority. At the time of the sale, the defendant gave her own note, secured by mortgages assigned by her, for a portion of the purchase-money, and a chattel mortgage upon the property purchased, to secure the remainder thereof, and subsequently executed a second chattel mortgage upon the same property to a thud person. Held, that by these acts, she ratified the unauthorized acts of her husband, and that she was liable for the price of the goods so purchased by him.

The defendant testified that she did not know what she was signing, when she signed the chattel mortgages; held, that as it appeared from the evidence that she signed them voluntarily, without misrepresentation or fraud, that their effect could not be avoided by her negligence or omission to read them.

Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The action was brought to recover a balance of $943.74 with interest, for merchandise sold and delivered to the defendant’s husband, as was claimed, as the agent of the defendant, who was a married woman. The negotiations were conducted by the husband with the plaintiff. The sum of $200 was paid in cash, and the balance secured by the note of the defend

p. 410

ant, a mortgage being assigned by her as collateral security thereto, and by a chattel mortgage given by her on the goods purchased, containing the usual covenant to pay the amount secured. The testimony material, as well as the rulings on the trial, are stated in the opinion. The referee reported in favor of the plaintiff, and the defendant appealed. The case was submitted upon printed points.

John F. Porter, for the appellant.

Henry A. Merritt, for the respondent.

It appears from the evidence in this case, that the defendant’s husband made the purchase of the property and took a bill of sale, of the same, in the name of his wife, the defendant, without any authority from her, and without her knowledge; that she never took possession of the property, and that the business was carried on in his name afterward, and not for the benefit of the’wife’s separate estate. If there were no other facts connected with the transaction, there would be no question that the defendant was not liable. But it appears that the defendant gave her own note, and assigned mortgages as collateral security for a portion of the purchase-money, which note was afterward paid, and- that she also executed a chattel mortgage on the property sold, to secure the balance which remained unpaid upon the sale.- It is also proved that subsequently, and on the 15th day of November, 1870, she executed another chattel mortgage to one Crawford, upon the same property. By these acts, she assumed ownership and control over the property sold, and, I think, ratified what her husband had done on her behalf at the sale, claiming, as he did, according to the plaintiff’s testimony, to act as her agent. It is true, that the defendant testifies that her husband had no authority; that she did not know what she was signing, when she executed the chattel mortgages; and that the one given to Crawford, was without consideration. This, however, does not relieve the defendant, and, inasmuch as she voluntarily signed these papers, in the absence of misrepresentation or fraud, with ample opportunity for informa

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tion as to their contents, the effect cannot be avoided upon the ground of negligence, or omission to read, or to avail herself of such information.^[1] There is no sufficient ground for claiming that the defendant’s signature was procured by fraud, and the mortgages as executed, are far more than presumptive evidence, and, I think, must be regarded as a ratification of the acts of her husband, even if he acted without authority originally,^[2] and a ratification of at least a part of an unauthorized transaction of an agent, or of one who assumes to act as such, which amounts to a confirmation of the whole', and binds the principal.^[3] As no fraud was shown, and, as the defendant, by writing, adopted the representations made by her husband when the contract of sale was made, she is estopped from denying her liability. If the views expressed are correct, then proof of the husband’s declaration to the plaintiff, at the time of the sale, was proper, as the agency of the husband was ratified by the subsequent acts of the defendant, and there was no error, either in receiving or in refusing to strike out, this testimony.

The’judgment was right and must be affirmed, with costs.

Present — Miller, P. J., Bookes and Boardman, JJ.

Judgment affirmed, with costs.

* Breese v. U. S. Telegraph Co., 48 N. Y., 132 .

† † Story on Agency, 283.

‡ ‡ Farmers’ L. & T. Co. v. Walworth, 1 N. Y., 433 .