cannot become bound by ratification, by a contract made by another in his own behalf.

In Linn v. Alameda Min. & Mill. Co. (1909) 17 Idaho, 45, 104 Pac. 668, it appeared that the principal stockholder of a mining corporation gave on option for the purchase of his stock, the company at the same time giving the prospective purchaser permission to enter upon its property and to do such work as might be necessary to determine its value. The prospective purchaser thereupon employed the plaintiff to drive a tunnel for the purpose of ascertaining the value of the property. The purchaser, becoming satisfied of the value of the property, finally took up the option and completed the purchase of the stock, and as incidental to its acquisition reorganized the board of directors, which on behalf of the corporation refunded to such purchaser the expense incurred in doing the prospecting and developing work. The plaintiff seeking to hold the mining company liable for an unpaid balance, the court held it could not be held liable as an undisclosed principal who had ratified the act of the purchaser in making the contract for the development of the property.

In Stanton v. Granger (1908) 125 App. Div. 174, 109 N. Y. Supp. 134, affirmed without opinion in (1908) 193 N. Y. 656, 87 N. E. 1127, it was held that a contract under seal cannot, by means of a complaint alleging agency and ratification on the part of an undisclosed principal, and not denied, be made the basis of an action for its specific performance on the part of one who did not seal the instrument and who was nowhere disclosed as a party thereto. Although in this case emphasis was placed upon the fact that the contract was under seal, so that it was not possible to modify the rigidity of the rule forbidding the introduction of parol evidence to vary its terms and conditions, the decision is also based upon the ground that it was not such a contract as was capable of ratification.

The doctrine of the principal case also receives indirect support from those cases, of which Kelner v. Baxter (1866) L. R. 2 C. P. 174, 36 L. J. C. P. N. S. 94, 12 Jur. N. S. 1016, 15 L. T. N. S. 213, 15 Week. Rep. 278, may be cited as an instance, which hold that a contract made by the promoters on behalf of a corporation not yet in existence is not capable of ratification. In this connection reference may also be made to the case of Saunderson v. Griffiths (1826) 5 Barn. & C. 909, 8 Dowl. & R. 643, 4 L. J. K. B. 318, an excerpt from which will be found in the opinion rendered by Lord James, of Hereford, in the principal case.

If there is little direct authority in support of the conclusion reached in the principal case, there is still less bearing upon the opposite side of the question, and about all that need be said here

in relation thereto is to refer the reader to the discussion in the various opinions given in KEIGHLEY V. DURANT of the cases of Bird v. Brown (1850) 4 Exch. 786, 19 L. J. Exch. N. S. 154, 14 Jur. 132; and Soames v. Spencer (1822) 1 Dowl. & R. 32, 24 Revised Rep. 631, which leaves no more to be said in relation to them; and to the opinion of Collins, L.J., in the court below, published in connection herewith.

And see also in this connection, Hayward v. Langmaid (1902) 181 Mass. 426, 63 N. E. 912, infra.

A case in which a contrary doctrine has been stated, though apparently by inadvertence, is Harder v. Continental Printing & Playing Card Co. (1909) 64 Misc. 89, 117 N. Y. Supp. 1001, where it is said: "The rule of agency, where the principal is undisclosed, is as follows: If the agent buy in his own name, but for the benefit of his principal, without disclosing the name of the principal, the latter as well as the former will be bound, provided that the goods are received by the principal, and the agent, in making the purchase, acted within his power as agent, or that his acts were subsequently ratified by the principal." It will be apparent upon consideration that all that is meant is that under the circumstances the detailed contract might become that of the principal by adoption, and not by ratification, the receipt of the goods purchased forming a sufficient consideration therefor.

It is pointed out by Lord Atkinson in Boston Fruit Co. v. British & F. M. Ins. Co. [1906] A. C. 336, 75 L. J. K. B. N. S. 537, 54 Week. Rep. 557, 94 L. T. N. S. 806, 22 Times L. R. 571, 11 Com. Cas. 196, 4 A. & E. Ann. Cas. 498, that the rule that the insurer, by a marine policy for the benefit of "all and every other person or persons to whom the subject-matter of this policy does, may, or should appertain in part or in all," is to be held to have insured those whom the person who dealt with him intended to be insured, though that intention was never communicated to him, is at variance with the decision in KEIGHLEY V. Durant.

A decision which, perhaps, should be noticed in connection with the subject under discussion, but which, as will be apparent, possesses distinguishing characteristics which take it out of the operation of the general doctrine, is Robinson v. Lincoln Sav. Bank (1887) 85 Tenn. 363, 3 S. W. 656, in which it appeared that a judgment creditor levied an execution on lands belonging to one of the persons jointly liable to him, and became the purchaser thereof. The other judgment debtor thereafter procured a bank to advance an amount sufficient to redeem the land, the bank taking the deed of the purchaser at the sale and also the deed of the sheriff to the land. It was held that, although the person active in procuring the loan did not assume to act as agent for the owner of the land,

yet that, the bank having notice of the situation, he might ratify and enforce the arrangement made with the bank.

Ratification where alleged agent exceeds actual authority. The doctrine under discussion apparently does not preclude the possibility of ratification, by an undisclosed principal, of acts of his agent beyond the scope of his authority; and the cases that so hold are not to be regarded as at variance therewith. In such cases there is not, on the side of convenience, the same difficulty in proving that the act was really done as agent; nor is there the technical difficulty arising from a want of consideration for the ratification.

Thus in Little v. Stettheimer (1850) 13 Mo. 572, it was held that where an agent employed to sell a stock of goods, without authority added to such stock additional goods purchased in his own name, which purchases were acquiesced in by the principal, who was frequently at the store and watching over the business, such principal became liable for the purchases thus made.

And in Harrison v. Schoff (1897) 101 Iowa, 463, 70 N. W. 689, it was held that an undisclosed principal may become liable by ratification for the acts of his agent in excess of his authority, since such a principal takes the contract charged with all its burdens.

A case which on its face might at first be taken to be at variance with the prevailing doctrine is Hayward v. Langmaid (1902) 181 Mass. 426, 63 N. E. 912, in which it is said: "It is necessary in order to a ratification that the act should have been done by one who was in fact acting as an agent, but it is not necessary that he should have been understood to be such by the party with whom he was dealing." This statement, however, is made apropos of a requested instruction which proposed as an essential to ratification that the act must have been done by one purporting or assuming to act as agent; and which was held to have been properly refused. It will therefore be apparent that the phrase "who was in fact acting as agent," does not mean that the person acting need only have intended in his own mind to act as agent, but that there must have been an actual relation of principal and agent between the party acting and the one alleged to have ratified such act. Furthermore, the facts of the case show that the relation of principal and agent actually did exist, and that the contention was that if the agent had in any respect exceeded his authority the defendant had ratified his acts.

[ENGLISH COURT OF APPEAL.]

NUGENT v. NUGENT.

[1908] 1 Ch. 546.

Also Reported in 77 L. J. Ch. N. S. 271, 98 L. T. N. S. 354, 24 Times L. R. 296, 52 Sol. Jo. 262.

Receiver-Partition action-Sale by mortgagee - Purchase by receiver without leave of the court.

A receiver appointed by the court cannot purchase the property of which he is receiver without the leave of the court, even where the sale is made, not in the action in which he was appointed, but by a mortgagee selling with leave outside the action.

Alven v. Bond (1841) Flan. & K. 196, 3 Ir. Eq. Rep. 365, approved. Decision of Swinfen Eady, J. [1907] 2 Ch. 292, 76 L. J. Ch. N. S. 614, 97 L. T. N. S. 279, 23 Times L. R. 660, affirmed.

(Feb. 1, 4, 1908.).

APPEAL from a decision of Swinfen Eady, J. [1907] 2 Ch.

292.

The facts are rather more fully stated in the report of the case in the court below, but the following summary is sufficient for the purposes of this report.

In May, 1905, the defendant in a partition action, and a part owner, was appointed receiver of the rents and profits of a house at Hove.

In November following a mortgagee, whose interest was in arrear, obtained an order giving her liberty as mortgagee (notwithstanding the appointment of the receiver) to enter and take possession and to exercise the power of sale by public auction. The mortgagee, as a fact, did not take possession, but put the house up for sale by auction.

In January, 1906, the defendant, without obtaining the leave of the court, instructed an agent to bid at the auction, and purchased the house for 3,500l. The defendant claimed to retain the house under her purchase.

[547] Swinfen Eady, J., held that the defendant, as receiver, court not purchase the property of which she was receiver without the sanction of the court, even where, as in this case, the

sale was made by a mortgagee selling with leave outside the action.

The defendant appealed.

Hon. E. C. Macnaghten, K.C., and Bischoff, for the appellant. In this case the sale was carried out by a mortgagee selling with leave outside the action; this distinguishes the case from Alven v. Bond (1841) Flan. & K. 196, 3 Ir. Eq. Rep. 365, where the sale was effected under a decree in the atcion, so that the receiver had some control. For the purposes of this sale the receiver was an absolute stranger, with no duties or advantages to prevent her purchasing the property, which, after all, was only a house at Hove, as to which no special knowledge was necessary to arrive at its true value.

[Cozens-Hardy, M.R., referred to Ex parte James (1803) 8 Ves. Jr. 337, 7 Revised Rep. 56.]

The defendant was not in a fiduciary relationship to the other parties in the partition action so far as this sale was concerned. The mortgagee's exercise of the power of sale had put an end to the receivership for all further practical purposes.. The fact that the defendant was one of the tenants in common is immaterial: Kennedy v. De Trafford [1896] 1 Ch. 762.

Had the sale been made in the partition action, the receiver could not have purchased; but as it was made by a mortgagee, the case is different. There is no suggestion here of any undue advantage having been taken.

Jenkins, K.C., and J. S. Green, for the respondents, were not called upon.

Cozens-Hardy, M.R., after stating the nature of the appeal, continued:-First of all, it is important to remember that the court, in dealing with this class of cases, does not proceed upon the footing that there has been fraud or improper concealment, or any special advantage taken by the receiver; but it proceeds upon the general rule that in cases of this kind the purchase ought not to be allowed at all, because it is a dangerous thing to [548] allow, as in most cases it is impossible to ascertain whether the receiver has or has not taken undue advantage of his position. It must not therefore be assumed because I think