Page:Harvard Law Review Volume 9.djvu/92

64 64 HARVARD LAW REVIEW. now to enter, save in so far as it bears upon the problem stated at the beginning of this article. As furnishing solutions of this problem several theories can be advanced ; and these will now be discussed. The first theory is the one for which the chief authority is Dodge V. Hopkins,^ a case decided by the Supreme Court of Wis- consin in 1861. In that case the doctrine of the court, as explained in the opinion, was that, as the principal's actual assent is not con- tained in the original transaction, the adverse party is not then bound ; that consequently the original transaction is wholly nuga- tory ; that consequently a ratification by the principal will not give him rights unless subsequently assented to by the adverse party .^ To this line of argument there are obvious objections. To take the last point first, it seems more natural to say that the adverse party assented originally, did not withdraw his assent before ratification, was capable of assenting then, and consequently must be taken to have assented still. Again, the assumption that an originally un- authorized transaction entered into in the name of a principal is, as between that principal and the adverse party, a mere nullity, seems to do away with the whole doctrine of ratification. Ratification can- not, even with the aid of a doctrine of relation, render that effective which was once a mere nullity. If the original transaction was a nullity, and if the assent of the adverse party must be obtained again, and if the effect of the ratification and of the renewed assent is to make a binding contract, it seems that the real con- 1 14 Wis. 630. The case is followed in Atlee v. Bartholomew, 69 Wis. 43 (1887). The doctrine is attacked in an editorial note in 5 Am. St. Rep. 109. That note is answered in an article by F. R. Mechem in 24 Am. L. Rev. 580; and to the latter dis- cussion there is a reply by F. A. Sondley in 25 Am. L. Rev. 74. 2 Dixon, C. J., delivering the opinion of the court, said : " It is very clear ., . that the plaintiff was not bound by the contract and that he was at liberty to repudiate it at any time before it had actually received his sanction Was the defendant bound.? And if he was not, could the plaintiff, by his sole act of ratification, make the contract obligatory upon him ? We answer both these questions in the negative. The cove, nants were mutual — those of the defendant for the payment of the money being in consideration of that of the plaintiff for the conveyance of the lands. The intention of the parties was that they should be mutually bound, — that each should execute the in- strument so that the other could set it up as a binding contract against him . . . from the moment of its execution. In such cases it is well settled . . . that if either party neglects or refuses to bind himself, the instrument is void for want of mutuality, and the party who is not bound cannot avail himself of it as obligatory upon the other. . . . The same authorities also show that where the instrument is thus void in its incep. tion, no subsequent act of the party who has neglected to execute it can render it obligatory upon the party who did execute, without his assent."