Whether such proof, when taken in combination with the fact of the ultimate acceptance of the benefits of the construction of this road. It had, so far as the directors knew, no contractual relation with plaintiff. The work of construction continued, so far as appears, after the making of the alleged contract between Merritt and plaintiff, precisely as it had before; the defendant dealing wholly with Wolf & King, and the plaintiff dealing with the latter, just as any subcontractor would. We are unable to conceive how the acts of the defendant in accepting the completed road and settling with Wolf & King, in ignorance, so far as appears, of Merritt's promise to plaintiff, can be construed as an implied ratification of Merritt's act. What the company accepted and retained was the fruits of the contract with Wolf & King, and nothing else."

In one case we find an unqualified the phraseology used seems to reflect statement which, on its face, imports merely a lack of judicial precision.* that, among the material circumstances However this may be, it would seem contemplated by the latter of these pre- clear that proof of this fact is, in any requisites, the court did not include the possible point of view, a condition prefact of the agent's having undertaken to cedent to the maintenance of the action.5 make, in his representative capacity, the contract with reference to which the services in question were performed; but in respect to which it was aboslutely ignor- | ant. The plaintiff has failed to show any employment upon the part of the defendant which was essential to his cause of action. And when it is stated that the defendant has not returned that which it received under its contract with the parties with whom it negotiated and contracted, it is clear that the rule has no application to the facts in the case at bar. How could it return? In what way could it restore the situation? That depended upon the will of other parties, and the defendant could be held to its contract by the other parties." See also Harris v. San Diego Flume Co. (1891) 87 Cal. 526, 25 Pac. 758 (defendant knew nothing of the arrangement made by its superintendent for the employment of the plaintiff as a broker to procure the services of a contractor for the construction of its flume); Pacific Bank v. Stone (1898) 121 Cal. 202, 53 Pac. 634 (no evidence showing that the directors had any knowledge whatever of the specific contract sued upon, or of its terms, or that its vice president had entered into it); Harper v. Goodall (1881) 10 Daly (N. Y.) 269 (husband's ratification of wife's contract not inferable).

Compare also the cases cited in § 57, note 2, supra.

3 "The general rule is that an agreement by an officer or agent of a corporation who assumes to act in its behalf can be enforced against the corporation where it has received the benefit of the agreement." Davies v. Harvey Steel Co. (1896) 6 App. Div. 166, 39 N. Y. Supp. 791.

4 In another part of the opinion it was explicity mentioned that "the fact that the hiring of the plaintiff was known to the defendant was abundantly proved;" and this was also the state of the evidence in Cunningham v. Massena Springs & Ft. C. R. Co. 63 Hun, 439, 18 N. Y. Supp. 600, one of the cases relied upon as a precedent.

5 In Grant v. Duluth, M. & N. R. Co. (1896) 66 Minn. 349, 69 N. W. 23, where a subcontractor sought to enforce a claim for labor performed in reliance upon a promise of the defendant's president to see that he was compensated, if he continued to work, one of the contentions advanced by counsel was that the action was maintainable on the ground that a ratification of an unauthorized contract is inferable where the principal knowingly accepts and retains the benefits thereof. But the applicability of this doctrine to the case was denied for the following reasons: "The defendant had let a contract to Wolf & King for the entire

In Holmes v. Board of Trade (1883) 81 Mo. 137 (action for legal services), an instruction which asserted the proposition "that the acceptance and use by the defendant of the work performed by the plaintiffs will alone suffice to render the defendant liable to the plaintiffs for the value thereof" was disapproved for the reason that it was a declaration of law under which the defendant would be liable although it did not know that the agent had professed to employ the plaintiff's on its behalf.

In Thayer v. Vermont C. R. Co. (1852) 24 Vt. 440, where a subcontractor had performed certain extra work under the directions of an engineer of a railroad company, the question whether the defendants were liable for his compensation was thus discussed: "He had no general contract with defendants. Their contract, for all this work, was with Belknap. This labor, then, so far as the company was concerned, comes within this contract with Belknap; he was bound to perform it, if required so to do by the engineer, and, of course, could obtain compensation under his contract. But, notwithstanding this, they might employ someone else to do it, or they might adopt the act of someone else, doing it. This could not be claimed upon the mere ground that it was beneficial to defendants. One cannot compel another to become his debtor, even by doing him good. And if this were merely the performance of Belknap's contract, it would really inure to his benefit. There must be shown something which amounts to a consent of the company to have the plaintiff do it upon their credit. The fact that the president and other officers of the company passed along while the work was doing, and might have known that plaintiff was doing it, and it was bene.

contract, should be regarded as sufficient to raise a presumption of ratification, is a question to which the authorities do not, as they stand, furnish a definite or consistent answer, and which may, perhaps, demand a different answer, according to the nature of the functions which the employing agent was hired to discharge.

pose of the discussion, to be substantially similar to that which has been presented in the cases by which the doctrine has been established that liability for the compensation of a subcontractor hired by an independent contractor engaged for the performance of a definite piece of work cannot be imputed to the principal employer on the mere ground that he was aware of the hiring and of the services rendered in pursuance of it.

In §§ 12 and 13 of the note to BRUTMEL V. NYGREN, L.R.A. —, —, it was shown that, so far as regards subagents en- This consideration and this analogy gaged to perform services with respect would seem to be equally relevant in a to the consummation of business trans- portion of the cases discussed in the actions of the same description as those present monograph, viz., those in which which the agents themselves were ap- the intermediate employer was an agent pointed to handle, the cases which appointed for the purpose of consumbear upon the effect of the principal's mating some particular transaction or acceptance of the benefits of a con- set of transactions, and the character of tract procured by the claimant are ex- those transactions is such as to indicate tremely conflicting. The present writer that he is expected to handle them in ventured to express a preference for person. Under such circumstances the the view that an adoption of the con- principal is apparently justified in acttract by the principal cannot warrant- ing upon the supposition that anyone ably be inferred from the mere fact of whom he may hire to assist him is hired acceptance, even where it also appears by him upon his own responsibility, and that, previous to the acceptance, he knew for his own convenience. In this point that the claimant had been hired by the of view the fact of the principal's havagent. The consideration mainly relied ing received the benefit of the services upon as a reason for this preference was performed in pursuance of the hiring this: that it is not unreasonable to take would not of itself warrant the inference the position that the principal, when he that he intended to assume responsibilascertains that a subagent of this charity for the compensation of the subemacter has been employed, is entitled to presume that he was employed by the agent merely as an assistant or substitute, and was consequently looking to the agent alone for his compensation. The situation was deemed, for the purficial, and made no objection, could amount to but little, unless knowledge was brought home to them that plaintiff was doing it upon the credit of the company. They would naturally suppose he was doing it for Belknap [the principal contractor], or that in some way it was being done under Belknap's contract with the company, so far as they were concerned, as they had made no other contract. They would scarcely be required to inquire into the terms of the contract between Belknap and his workmen or subcontractors, and no inference could fairly be made against them as to having made a new contract with some third per, son, upon that ground, as it seems to us." 6 See § 50, supra.

7 In Swayne v. Union Mut. L. Ins. Co. (1899) Tex. Civ. App., 49 S. W. 518, the defendant, a nonresident corporation represented in Texas by Robertson, an attorney at law, held a mortgage on certain property. In pursuance of an agreement between him and one Imboden, who was interested in having the mortgage foreclosed in order that a sale of the property,

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ployee. The theory thus suggested, although it was not in terms propounded in the case which is reviewed in the footnote, seems to be in accord with the language of the court, as well as with the decision actually rendered."

which he had negotiated with one Crowl, might be consummated, the papers necessary for an intervention in receivership proceedings then pending with regard to the property, and for the foreclosure of the mortgage, were forwarded to Imboden. It was also stipulated that Imboden should employ such counsel as might be required. Plaintiff, having been employed in pursuance of this arrangement, sued the defendant for his remuneration. The grounds upon which the court of appeal held that he was not entitled to recover were thus stated: "Nor can it be said, under the circumstances, that the company would be bound on account of the alleged ratification in accepting the benefits of the service rendered by appellant. It was not within its power, after the service had been rendered, to reject such benefits. Ratification as a result of taking the benefits of an unauthorized transaction implies the power of election to take or not to take; that is to say, when the principal discovers that the agent has exceeded his authority, he cannot then, without being bound, hold on to bene

inson (1906) 78 Ark. 483, 115 Am. St. Rep. 54, 95 S. W. 802, the liability of a railway company for the payment of certain rewards offered by its general manager was affirmed on the ground that knowledge of the facts was imputable to its general

manager.

But in the great majority of the cases | conclusion would seem to be irresistible with which we are now concerned a dif- that, if he allows the subemployee to ferent conclusion is apparently indicated proceed with the work, and ultimately by the fact that the services in question avails himself of its fruits, he should were of such a nature that the principal prima facie be taken to have adopted could not have contemplated their per- the contract of employment. The cases formance by the agent himself. Wher- are, on the whole, in harmony with a ever this situation is presented, it is not doctrine of this purport. In some of unreasonable to take the position that them the acceptance of the benefits of the principal, when he learns that the the work was treated as an element imsubemployee is doing work which will porting that the contract was ratified in benefit his property or his business, is such a sense, and to such an extent, as bound to presume that the agent entered to invest the claimant with the right of into the contract of employment on his maintaining an action upon it.8 More behalf, and with the intention of crcat- frequently it has been regarded as the ing a privity between him and the sub- foundation of a liability enforceable in employee. In this point of view the a suit on a quantum meruit.9 fits derived from the unauthorized transac- | tion, when it is within his power, by a repudiation of the unauthorized act, to restore such benefits to the one whom they have been acquired. Besides, in this case it appears that the service of appellant was rendered with the understanding on the part of Robertson [defendant's attorney and agent for collection of debt; who had sent the pleadings to Imboden] that he was acting in the interest of Imboden and under independent employment by Imboden, and that settlement was made with Imboden upon this basis, without any reason to suspect on the part of Robertson that appellant was looking to him or the company for his fee. It was the duty of appellant to know the extent of Imboden's authority in employing him, and, if not satisfied with Imboden as his employer or paymaster, to apprise the company, through Robertson, of that fact; at least before the settlement with Imboden was made." The affirming judgment of the supreme court (1899) 92 Tex. 575, 50 S. W. 566, proceeded upon grounds thus stated: "If in fact appellee did not employ appellant, and Imboden had no authority to do so on its behalf, but employed him for the purpose of forwarding the interests of himself and Crowl, appellant understanding that Crowl was to pay his fee, the mere fact that appellee permitted him to represent it in the suit in conjunction with its own counsel would not render it liable as a matter of law."

9 In Goodwin v. Union Screw Co. (1857) 34 N. H. 378, the court said: "The defendants would be liable in a quantum meruit, in the absence of any special bargain for services of the plaintiff, performed for them with the knowledge of the directors and general managers of the corporation, and he might recover a quantum meruit on the general counts of his declaration. Even if the special bargain made with the plaintiff was unauthorized and not binding on the defendants, they are still liable to pay him what his work was worth, and on that ground also the nonsuit was properly refused."

In Hooker v. Eagle Bank (1864) 30 N. Y. 83, 86 Am. Dec. 351, the grounds upon which an architect was held to be entitled to recover for services rendered in the preparation of plans, etc., for a building, were thus stated: "It is not necessary, in order to charge a corporation for services rendered, that the directors, at a formal meeting, should either have formally authorized or ratified the employment. If an officer employs a person to perform a service for the corporation, and it is performed with the knowledge of the directors, and they receive the benefit of such service without objection, the corporation is liable upon an implied assumpsit."

8 In Fister v. La Rue (1853) 15 Barb. (N. Y.) 323, where a claim for the salary of a school-teacher was founded on a contract made by a single trustee, the court In Potter v. New York Infant Asylum said: "It is well settled, at least in this (1887) 44 Hun (N. Y.) 367, where various country, that where a person is employed officers of defendants had actual notice that for a corporation, by one assuming to act plaintiffs were for several months engaged in its behalf, and goes on and renders the in legal work for the corporation under the services according to the agreement, with supervision of their president, the court the knowledge of its officers, and without said: "The conduct of defendants can be notice that the contract is not recognized explained in two ways. Either they had as valid and binding, such corporation will confidence in the discretion and good judg be held to have sanctioned and ratified the ment of their president and were willing to contract, and be compelled to pay for the abide by his acts, or they confided in their services, according to the agreement." supposed inability to contract liabilities In Arkansas Southwestern R. Co. v. Dick-without a formal resolution of the board,

and were willing plaintiff's services should quiry as to the source of plaintiff's authorcontinue to the benefit of defendants, with-ity to do the work. As officers of the comGat any corresponding liability. In either case good morals require that the laborer should receive his hire."

A portion of the cases decided upon the latter footing have had relation to contracts which did not contain any specific stipulation concerning the rate of remuneration; but where such a stipulation was a part of the contract, it is perhaps permissible, as a matter of juristic theory, to regard the asserted right of recovery as being referable to one or other of two conceptions; viz., that of an incomplete ratification, amounting to a recognition of the contract merely in so far as it purported to create a privity between the principal and the claimant, or that of a new obligation brought into existence at the time when the benefits of the services are accepted.

In one case it was laid down broadly that the doctrine under which the principal is charged with liability as a result of his having accepted the benefits of the contract of employment is not applicable to " cases where a third person has expressly contracted to do the work in question, and the defendant was not (married woman liable for legal services rendered by counsel employed by her husband in litigation to establish interest in community lands); Wheeler v. Hall (1877) 41 Wis. 447 (rule recognized in a case where the actual evidence was that the plaintiff had been employed by the defendant's brother with her approbation and consent).

In Gibson County v. Motherwell Iron & Steel Co. (1889) 123 Ind. 364, 24 N. E. 115, an architect having the full supervision of the construction of a courthouse ordered a change in the work which caused an increase in the expense, and the building, when completed, was accepted by the defendants. Held, that the county became liable for this extra work.

Compare also Libbey v. Harney (1913) 41 App. D. C. 205 (defendant held liable for materials purchased by architect); French Gas Saving Co. v. Desbarats Advertising Agency (1912; K. B.) Quebec,, 1 D. L. R. 136 (defendant liable for goods supplied).

10 Alabama Western R. Co. v. Bush (1913) 182 Ala. 113, 62 So. 89 (subcontractor not entitled to recover for extra work performed by the direction of the defendant's engineer).

(a) Cases denying the right of recovery.

11 In Woodruff v. Rochester & P. R. Co. (1887) 108 N. Y. 39, 14 N. E. 832, the court, in discussing the right of a subcontractor to recover for extra work ordered by the defendant's engineer, said: "It is true that after the road was completed it took possession thereof, as it had the right to do, and that in that way it had the benefit of the work done by the plaintiffs; but that

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informed that plaintiff was working directly for defendant and looking to him for compensation. Not knowing these conditions, it cannot be said that defendant knowingly accepted work done for him.''10 Having regard to the facts with reference to which this statement was made, the decision cannot, it is manifest, be harmonized with the theory above suggested, that the effect of an acceptance of the benefits of the work for which compensation is claimed may properly be treated as a matter depending upon the question whether the services which the hiring agent himself undertook to perform were or were not of the same character as those covered by his contract with the subemployee.

The decisions are conflicting with regard to the question whether an acceptance of the benefits of the contract is to be deemed an element importing ratification, where the work was of such a nature that its material results had hecome a part of the principal's real property or of something affixed thereto.11

was no ratification of the contracts made by the engineers, and did not make it responsible for such work unless it in some way agreed to pay therefor."

In Hill v. Coates (1901; Sup. App. T.) 34 Misc. 535, 69 N. Y. Supp. 964, the court, referring to certain repairs carried out by the plaintiff in the plumbing of a house, observed: "There could, of course, be no ratification by an implied acceptance through silence, inasmuch as the repairs became part of the freehold, thus precluding restitution."

In McLaren v. Hall (1868) 26 Iowa, 297, where an instruction which embodied the theory that the defendant was liable simply because she accepted the work done under a contract made with her husband was held erroneous, the court said: "Where work done upon the real estate of another becomes part of such real estate as the work progresses, the owner cannot do otherwise than accept it. Such an acceptance from necessity cannot properly be relied upon as evidence showing a contract."

In Moyle v. Congregational Soc. (1897) 16 Utah, 69, 50 Pac. 806, the court declared that "it does not follow that because the church used the building after its completion, thereby unavoidably having the benefit of the work and materials furnished, the church would therefore be liable for the value thereof."

In Linn v. Alameda Min. & Mill. Co. (1909) 17 Idaho, 45, 104 Pac. 668, the work in question had been done through a tunnel of a mine adjacent to that of the defendant, and its sole object was to enable a prospective purchaser to satisfy himself with regard to the value of the defendant's property, on which he had obtained an