OSCAR H. MOTT, Appellant,
LUCY W. SCHOLES and ELIZA J. MCCORMACK, Respondents.
APPEAL by the plaintiff, Oscar H. Mott, from a judgment of the Supreme Court in favor of the defendants, entered in the
office of the clerk of the county of Nassau on the 17th day of April, 1911, upon the decision of the court, rendered after a trial at the Nassau Special Term, dismissing the complaint upon the merits.
Maurice B. Blumenthal and Daniel W. Blumenthal, for the appellant.
Charles I. Wood, for the respondents.
The plaintiff appeals from a judgment of the Special Term in Nassau county, dismissing his complaint for the specific performance of a contract to convey real property. The plaintiff was the assignee of one Zimmermann, who was in turn the assignee of one Brundage. The plaintiff declared in the complaint upon a written contract which it alleged was executed by a Mrs. McCormack as the duly authorized agent of the defendant, Mrs. Scholes. The answer denied this allegation and set up a number of affirmative defenses. At the trial no attempt was made to show that Mrs. McCormack had any authority whatever as an agent from her daughter, Mrs. Scholes, who owned the property in her own right. Instead of seeking to establish an agency, the plaintiff sought to prove a subsequent ratification of the contract by Mrs. Scholes. The trial court deemed the proof of ratification insufficient. There was no proof offered by the defense, the case being determined on the plaintiff's proofs alone.
The facts are as follows: Mrs. Scholes owned the property. It had at one time been owned by her father, Mr. McCormack, who is now dead. Her mother, Mrs. McCormack, an old woman, resided with her. The property was near that of Zimmermann. It was in the market for sale at $10,000 or $9,000, subject to a mortgage for $2,000. Zimmermann wanted the property and he authorized one Brundage, a real estate agent, to buy it for him at $6,000, if he could get it. Brundage was not called as a witness. But it appears that Brundage went to a real estate agent, Oldrin, a woman, and requested her to prepare a contract between him as vendee and Mrs. McCormack as vendor. Some question arose as to the description to be put
in the contract, as they did not know it definitely at the time. Brundage suggested a description which Oldrin put in the paper. Then Brundage went away and returned with Mrs. McCormack. She did not have her glasses and could not read the paper. Oldrin read it to her. As the paper then stood it recited that Mrs. McCormack was the 'seller,' and the name of Mrs. Scholes appeared in no way thereon. Brundage asked Mrs. McCormack to sign it. She then signed her own name at the foot thereof. Thereupon Brundage asked her to sign also in the name of her daughter, Mrs. Scholes. Mrs. McCormack said that she did not know it was necessary. Brundage said it was. Then she signed her daughter's name, so that the signatures to the paper read as follows: 'E. J. McCormack or Lucy W. Scholes.' The sum of $100 was paid on account by Brundage, and the expressed consideration was $6,000, $5,900 to be paid 'in cash on the delivery of the deed as hereinafter provided.' Thereafter, but practically on the same occasion, Brundage asked Oldrin to insert the name of Mrs. Scholes in one of the duplicate 'contracts.' She inserted the name of Mrs. Scholes, so that the contract read: 'Agreement made and dated April 29th, 1910, between Eliza J. McCormack, Lucy Wilson Scholes of Sea Cliff,' etc., 'hereinafter described as the seller,' etc.
Nowhere in the paper is there any recital that Mrs. McCormack was purporting to act as an agent for anybody. She had thought for some reason that her own signature was all that was necessary. As before stated, no attempt was made at the trial to prove that she ever claimed to be her daughter's agent or was so in fact. The plaintiff did not call Brundage, who, while pretending to act as a principal, was really the agent of the undisclosed principal, Zimmermann, to whom he immediately turned over the contract. The attempt to prove a ratification by Mrs. Scholes rested entirely on the testimony of Zimmermann. This testimony, not being contradicted, must be given full effect. Yet, giving it full effect, it does not show any ratification by Mrs. Scholes. The rule as to ratification is stated quite satisfactorily as follows: 'A ratification of the unauthorized act of an agent, or of a stranger who claims to act as such, if it exists, must be found in the intention of the
principal, either express or implied. If that intention cannot be shown, no ratification can be held to have been established. While it is the duty of a principal to disavow the unauthorized act of his agent within a reasonable time after it comes to his knowledge, or otherwise, in some cases, he makes the act his own, still, where one who has assumed to act as an agent for another has no authority to do so, but is a mere volunteer, a failure to disavow his acts will not amount to a ratification, unless under such circumstances as indicate an intention to do so.' ( Merritt v. Bissell,155 N.Y. 396.) The case at bar does not present the feature of an actual agent attempting to bind a principal by an act beyond the authority of the agency. If it can be considered that Mrs. McCormack was attempting to act in any manner as an agent, then, under the case as it stood, she was a mere volunteer who had attempted to assume or usurp an agency without authority. From the mere circumstance that she was the mother of Mrs. Scholes no presumption of general agency arises. Concededly Mrs. Scholes did not expressly ratify the contract executed by Mrs. McCormack. After Zimmermann took an assignment thereof from Brundage he went to the property with a prospective tenant, and meeting Mrs. Scholes he asked to be shown through the house, and his request was complied with. Mrs. Scholes asked him to return, as she wished to have a private conference with him. He did return in about an hour. According to his testimony, a conversation took place as follows: Mrs. Scholes said: 'Mr. Zimmermann, is it true that Mr. Brundage has bought the cottage for you and that he had assigned the contract over to you?' He answered: 'It is.' She then said: 'Mr. Zimmermann, you know six thousand dollars for this property, considering that mother and I have lived in this for many years, and that ...