William T. Merrifield vs. E. M. Parritt & others, 11 Cush. 590

Metcalf, J. It was objected, at the trial, that the defendants had not received notice of the exact sums that were due according to the monthly estimates, and that a demand of payment had not been made on them before action brought. This objection was overruled—rightly, we have no doubt— and the defendants, at the argument, waived it. Com. Dig Pleader, C. 75; Punderson v. Shepherd, 8 Pick. 379.

It was also objected, at the trial, that under the new agree ment, made between the parties, under seal, on the 8th of August, 1851, after the commencement of this action, all right of action upon the agreement in suit was postponed or suspended till the completion of the building. And that objection is still relied on by the defendants.

But the answer to it is, that by the express terms of the new agreement it was declared that nothing therein contained should release or discharge the defendants from any debt already incurred under the original agreement, and that the new agreement should in no respect be a waiver of the same, or any part thereof, but be additional thereto. And there is nothing in the provisions of the second agreement, which, by legal operation, postpones, suspends or waives a right of action on the first, or prevents the second from being, as the parties intended, merely additional to the first.

Another objection taken by the defendants, at the argument, was, that as by the second agreement the $6,000 therein provided for the plaintiff, were to be applied first to pay him for what he should thereafter do upon the building, and the disbursements he should thereafter make, and not to pay him for what he had theretofore done and disbursed, unless that sum should exceed the amount due for the work subsequently done, therefore the plaintiff is not entitled to recover for the work previously done, (which is the subject of this action,) because he had not shown that the $6,000 will all be required to pay for the work subsequently done.

The same answer which was given to the last preceding objection is an answer to this. And there is another answer. The objection assumes that if there shall be any surplus of the $6,000 after paying the plaintiff his full dues for labor and materials furnished after the making of the second agreement, sucu smplus, by necessary implication from the terms of that agreement, must be applied towards payment to the plaintiff of what was due to him before the making of the second agreement.

This assumption is unwarranted; for it is clear that such surplus, if any, was to be thus applied, only in case something should remain due to the plaintiff, for the work and materials furnished before the second agreement was made. If the amount due for that work and those materials should be otherwise paid—whether voluntarily or on suit and judgment—the surplus was not to go into his hands. These objections to the maintenance of the action, respected all the defendants. But Parritt sets up a defence which affects himself alone.

He denies that he is bound by the contract in suit; because, as he insists, it was not so executed as to bind him. The unquestioned facts are these: [Here the judge stated the testimony of Boyden, and the recital in the

preamble to the second agreement, as given, ante, 591,592.] On these facts, we are of opinion that Parritt has no legal defence; but that Ms conduct subsequently to the affixing of his name, by Andrews, to the agreement, was a ratification or adoption of Andrews’s act, and also rendered him liable as a party to the agreement, on the gi-ound of an estoppel in pais. He authorized Andrews to execute the agreement for Mm, in some form. The exact terms of that authority are not made known to us.

His name was signed by Andrews, and he afterwards said that all was right; he took into his possession one part of the agreement, (which was executed in duplicate,) and afterwards used his active efforts, as one of the building committee, to ensure the completion of the building.

The counterpart of the agreement was put into the plaintiff’s hands, and he, on the faith of it, proceeded in the work which, by that agreement, he had engaged to perform; supposing, and Parritt knowing that he supposed, that he had the promise of all the parties whose names were affixed to that agreement, to pay him according to its terms. The law of a case like this is as clear as it? justice and equity. Even if Andrews had signed Parritt’s name to the agreement, without any previous communication with him, Parritt’s subsequent conduct would have bound him as a party to that agreement. Helmsley v.

Loader, 2 Campb. 450; Wilson v. Tumman, 6 Man. & Gr. 236; Maclean v. Dunn, 4 Bing. 722; Clark’s Ex’ors v. Van Riemsdyk, 9 Cranch, 153, 161; Dezell v. Odell, 3 Hill, 215; 1 Saund. Pl. & Ev. (2d ed.) 65. This view of the case renders it unnecessary to inquire whether the doctrine advanced in Wood v. Goodridge, 6 Cush. 117, was originally applicable to the signature made by Andrews. It was argued that, according to that doctrine, the act of Andrews was void; and then it was said that a void act cannot be ratified.

But if it be admitted that Andrews exceeded his authority, by writing Parritt’s name, without more, it would not follow that 'Parritt could not adopt or ratify that act. Whatever may be the meaning and extent of the rule, that a void act cannot be ratified, the rule does not apply to the acts of persons assuming, without authority, to be agents, nor to the acts of acknowledged agents, which exceed their authority.- See the cases above cited, and Story on Agency, § 242. We do not regard the recital in the second agreement, that the parties thereto had made the first, as an estoppel by deed, in this action.

We believe that the counsel for Parritt has rightly stated the law on this point, viz: that a recital in a deed is an estoppel only in an action on the deed, or in an action brought to enforce rights arsing under it. Steph. Pl. (1st ed.) 239, 240; CuttingwortW s case, Godb. 177; Wiles v. Woodward, 5 Welsb. Hurlst. & Gord. 563, 564; Carpenter v. Buller, 8 Mees. & Welsb. 209 ; Bolles v. Beach, 2 Zab. 695. But even in this action, that recital is strong evidence that Parritt had either originally authorized the act of Andrews, or had subsequently adopted and ratified it.

We, however, deem that evidence redundant; the other evidence being sufficient to support the plaintiff’s demand. Judgment on the verdict.