Goetz v. Goldbaum

California Supreme Court Sep 1, 1894 No. No. 19,331Published

Before: Temple

AI Brief

AI-generated · verify before citing

Holding. A complaint sufficiently alleges the execution of a promissory note by an agent without explicitly pleading the agent's authority, and a principal's subsequent ratification of an unauthorized act is legally equivalent to prior authorization.

Issues

Whether a complaint must explicitly aver an agent's authority to execute a promissory note on behalf of a principal.
Whether the ratification of an unauthorized act by a principal is equivalent to prior authorization and binding without being specifically pleaded.
Whether the ratification of a promissory note must be in writing.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The constitutive fact here is plainly that defendant executed the note. Whether by an agent or in person is immaterial.”

“Ratification is in law the equivalent of a previous command. It is proof of due execution.”

“The contract is simply an agreement to pay money, which need not be in writing.”

Synopsis

Agency—Pleading.—A Complaint on a Contract Executed by an agent may, without more, aver its execution by defendant, the principal; and, the agency appearing from the copy of the note set out, authority to execute it is implied, and need not be expressly alleged.1

Agency — Ratification.—Ratification Need not be Expressly pleaded.

Agency—Estoppel.—W., a Merchant, and Partner with plaintiff in a livery, failed, and transferred his property to his brother S., through whom he settled with most of his creditors, as he swore, with his own money. Business was done in S.’s name, but W. borrowed money from plaintiff for the business, bought out his interest in the stable, and gave him a note for the whole, signed, “S., per W.” Plaintiff asked S. about the note, and S. said he would go and see about it, and went and talked to W., but said nothing to plaintiff. Later he proposed to plaintiff to go into partnership with him and W., putting in the note as capital; and then he took over the business and property from W., paying him some cash, and assuming the debts, among which, at the time, he mentioned this. Held, that he was estopped to say that W. did not sign the note as his agent, and that he had not ratified it.

Statute of Frauds — Oral Ratification.—A Promissory Note, such as, under Civil Code, section 2309, must be in writing, is a commercial note, not a mere non-negotiable promise to pay, and the latter may be ratified orally.

TEMPLE, C. Defendant appeals from the judgment and an order refusing a new trial. The action is based upon a non-negotiable promissory note, and in the complaint it is alleged that on the fifth day of October, 1891, defendant executed and delivered a promissory note in writing, in the words and figures following. The note is then set out at length, and is signed, “Simon Goldbaum, per Wm. G.” There is no averment showing who Wm. G. was or that he had authority to execute the note as the agent of defendant. The complaint was demurred to for insufficiency of facts, and as ambiguous, in that it appears that the note was executed by some person other than defendant, "but does not show who such person was or that he had authority to execute the note as agent. The same objection is also made on the ground of uncertainty. It is now contended that the complaint should set out the facts, and not conclusions, and that, if the fact be that the note was made through an agent, it should be so averred. St. John v. Griffith, 1 Abb. Pr. (N. Y.) 39, is quoted, in which-it is said: 11 The code requires facts to be stated, not fiction; the facts of the case, and not the mere legal conclusion. Such a statement as that adopted by the plaintiff is not only admissible, but necessary.” In that ease it was averred that the act was done by the agent. That decision was by a subordinate court, and is not in accordance with better considered eases. The plaintiff is required to state the facts which constitute his cause of action. The constitutive fact here is plainly that defendant executed the note. Whether by an agent or in person is immaterial. If by an agent, such fact is not one which constitutes his cause of action.

But it is argued, inasmuch as it appears that the note was executed through an agent, the authority should appear. This point is answered by the case of Sherman v. Comstock, 2 McLean, 19, Fed. Cas. No. 12,764. In the declaration in that case it was averred that defendant made his note or check in the words and figures following:

“Detroit, December 14, 1838. “Cashier of the Michigan State Bank:

“Pay to Morgan and Clark, or bearer, $674.96 thirty days from date.

“ [Signed] HORACE H. COMSTOCK.

“By JOEL CLEMENS.

[751]There was no further allegation as to agency. The declaration was demurred to on the ground that it did not appear that Clemens was authorized to act as- agent for defendant. The court said: “As it regards the execution of the note by the defendant, it is sufficiently averred in the declaration. ITe signed it by Joel Clemens; and that Clemens was authorized to act in the premises appears, for that his act is- alleged to be the act of his principal. The declaration might have contained an averment that Clemens was duly authorized to act as the attorney in fact of the defendant, but such averment is unnecessary.”

Goetz v. Goldbaum

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief