Page:Harvard Law Review Volume 9.djvu/93

65 A PROBLEM AS TO RATIFICATION. 6$ tract is a new one, and is not the old transaction ; for though the old transaction suppHes the terms, the new one alone supplies the assent of each of the parties. The doctrine of ratification, accord- ing to this theory, seems to disappear.^ As indicating the court's point of view, and also as diminishing materially the force of Dodge v. Hopkins as an authority, it should be noticed that the only cases upon which the court relied are cases in which an actually au- thorized agent and an adverse party entered into a contract under seal, which, though conceded to be within the agent's authority, failed to bind the principal because it was expressed and signed in such way as not to make the principal an actual party to the con- tract.^ In those cases it was necessarily held that the original contract failed to bind the principal ; that, as it obviously contem- plated mutual promises binding the principal and the third person to each other, it also failed to bind the third person; that conse- quently it was wholly invalid ; and that it was incapable of becom- ing valid as against the third person through the mere subsequent assent of the principal.^ To call subsequent assent in such a case a ratification is clearly a misnomer ; for the contemplated contract was, or by the court was assumed to be, fully within the agent's authority, and hence the defect was in the contract itself and not in the agent. No one supposes that a ratification is more efficient than an original authorization, nor that it can change the force given by law to certain forms of language and of signature. The cases cited in Dodge v. Hopkins, therefore, do not sustain the de- cision, but do show clearly that, as between an assumed principal and the third person, the court considered an unauthorized trans- action wholly nugatory. Such a conception cannot lead to good results. An argument based upon it either proves too much or proves nothing at all. The logical conclusion ought to be that an entirely new contract is necessary, and that hence there is no 1 For ratification is neither a contract nor an estoppel, but a mere election. »Com- mercial Bank v. Warren, 15 N. Y. 577 (1857) ; Forsyth v. Day, 46 Me, 176, 194-197 (1858); Metcalf z/. Williams, 144 Mas«. 452, 454(1887). A possible explanation of Dodge V. Hopkins is that the court may have assumed that a ratification requires either a consideration or the elements of an estoppel. 2 Townsend v. Corning, 23 Wend. 435 (1840) ; Townsend v. Hubbard, 4 Hill, 351 (1842). ratification. It might be that such so-called ratification and such assent could be taken together as making a contract ; but that would be a new contract, and would not by relation cause the old transaction to have efiicacy. 9
 * Nor could it have become valid if the third person had assented to the so-called