Clarke v. Lyon County.

the ratification is cognizant of all the material features of it; and especially must he have a knowledge of the existence or execution of the contract itself. RATIFICATION EQUIVALENT TO EXECUTION OF CONTRACT. As ratification is after all but the execution of a contract on the part of the person ratifying, such ratification, to be effective, must be done understandingly.

BURDEN OF PROOF ON PLAINTIFF RELYING ON RATIFICATION. Where a plaintiff relies for a recovery upon ratification by defendant of an unauthorized contract, it is incumbent upon him to prove that defendant knew of the contract, and not upon defendant to establish the negative.

PLEA OF TENDER OF SMALLER SUM NOT AN ADMISSION. Where, in an action by attorneys against a county, to recover $5,000 for services performed for it under an unauthorized contract made by the district attorney, defendant denied any employment, and also pleaded that the services were worth only $400, which it tendered and brought into court: Held, that, though under the old common law practice, such plea of tender might have carried with it an implied admission of the employment, it was not so under the practice act, which allows a defendant to plead as many defenses as he may have, and provides that all the allegations of a pleading shall be liberally construed, with a view to substantial justice.

PLEADING

GENERAL DENIAL AND TENDER OF SMALLER SUM. There is no such absolute repugnance between a denial of an alleged employment and an offer to pay a smaller sum than that claimed, as to prevent them both being pleaded in the same answer.

TENDER OF SMALLER SUM NOT AN ADMISSION OF INDEBTEDNESS.

A tender of a

smaller sum than that claimed is not a necessary admission that any sum is legally due.

PRACTICE ON APPEAL-POINT NOT MADE BELOW. Where, in a suit on an unauthorized contract for services at a certain sum, claimed to have been subsequently ratified, defendant, in addition to a general denial, pleaded that the services were only worth a much smaller sum, which he tendered; and on the trial there was no claim that such plea of tender was any admission of the contract: Held, that such point could not be made for the first time in the Supreme Court, for the reason that there was there no opportunity to amend, which defendant would have had if the point had been made below.

ADMISSIONS BY IMPLICATION—AMENDMENTS. If advantage is to be claimed or re

liance placed upon an admission in a pleading which results solely from construction or implication, and where, as a consequence, the pleader may be misled to his injury, it must be done before the opportunity for amendment has passed.

APPEAL from the District Court of the Second Judicial District, Ormsby County.

The plaintiffs, Robert M. Clarke and Thomas Wells, composed the law firm of Clarke & Wells. The verdict and judgment in

Clarke v. Lyon County.

their favor was for $4,500. The material facts are fully set forth in the opinion.

Mitchell & Stone, for Appellants.

I. The refusal to give the instruction asked by defendant was error. The testimony showed that no contract was made by the defendant with plaintiffs for the performance of the services mentioned in the complaint; and the evidence did not show any ratification by the commissioners of the pretended employment of plaintiffs by the district attorney. Lyon v. Jerome, 26 Wend. 494; Treichler v. Berks County, 2 Grant's Cases, 445; The Board of Commissioners of Huntington County v. Boyle, 9 Indiana, 297; Yellow Jacket Silver Mining Co. v. Stevenson, 5 Nev. 229.

II. The plea of tender in defendant's answer does not preclude it from relying upon the defense that no contract was made with plaintiff. Practice Act, Sec. 49; Klink v. Cohen, 13 Cal. 625; Uridias v. Morrill, 25 Cal. 36.

A. C. Ellis, for Respondent.

I. A county may ratify a contract of an unauthorized agent made in its behalf, the contract being one which the county could make in the first instance. People v. Smith, 31 Cal. 26; 4 Nev. 20; 5 Nev. 224; 26 Wend. 225. The action of the commissioners in permitting the plaintiffs to appear and defend for the county, in accepting the fruits of the suit, and in allowing in part the demand, amounted to a ratification of the district attorney's employment of plaintiffs. Story on Agency, Sec. 252 et seq.; 1 Parsons' Contracts, 47; 2 Parsons' Contracts, 118; Story on Contracts, Sec. 72. The ratification of a contract in part ratifies the whole. Story's Agency, Sec. 250.

II. The defendant's answer of tender, and the bringing into court of the sum allowed, cuts off all the defense except as to the value of the services, and estops the defendant from denying the employment. 2 Parsons' Contracts, 150, note; 5 Pick. 285; 7 John. 315; 6 Pick. 340; 2 Wend. 431; 1 Tidd's Practice, 625.

III. If the record discloses a ratification of the employment or

Clarke v. Lyon County.

evidence tending to prove such ratification, (for this court cannot weigh the testimony) there is left no question except the power of the commissioners to employ counsel, and the value of the services rendered.

By the Court, LEWIS, C. J.:

This action was brought by the plaintiffs to recover the sum of five thousand dollars for legal services claimed to have been rendered for the defendant under these circumstances: A suit being instituted in this court against the county to enforce the issuance of its bonds to the Virginia and Truckee Railroad Company, to the extent of twenty-five thousand dollars, the district attorney of the county engaged the plaintiffs to assist him in the defense, which they accordingly did. Subsequently, a claim was presented to the county commissioners for the sum of five thousand dollars for the services so rendered, but they allowed four hundred dollars only, and directed that amount to be paid. The plaintiffs declined the sum so allowed, and brought this action. It does not seem to have been claimed on the trial that the commissioners directly employed or retained plaintiffs; but it was attempted to be proven that they subsequently ratified the action of their district attorney in that respect; and upon this the complainants appear to have rested their case. The proof on their behalf was briefly the employment by the district attorney, the character of services rendered, their value, the presentation of the claim to the board of commissioners, and their action thereon, which consisted simply of a resolution directing the payment to the plaintiffs of four hundred dollars. Upon these facts the court was asked to charge the jury that if they believed" from the evidence that the plaintiffs presented a claim for the sum of five thousand dollars to the commissioners of Lyon County, the defendant, and that after such presentation of said claim for services, said board allowed or approved the sum of four hundred dollars gold coin only of such claim, you are instructed that such act of approval of a part of said claim does not in itself alone constitute a ratification of any agreement or contract made by William Gates, district attorney of defendant, with the plaintiffs for plaintiffs' compensation as attorneys or counsel in the

Clarke v. Lyon County.

suit of the Virginia and Truckee Railroad Company against Lyon County." This was refused and exception taken.

The instruction should have been given. The only fact tending to make such a ratification was the action of the commissioners in allowing the plaintiffs four hundred dollars. In determining whether the instruction be correct or not, it must be viewed in connection with this state of the proof on the part of the plaintiffs. It is not necessary to decide whether under all circumstances, or as an abstract proposition, the action of the commissioners in making a partial allowance of a demand growing out of a contract between the district attorney and the plaintiffs will constitute a ratification of such contract, but only whether such was the result under the proof as it existed in this case. There was not a scintilla of testimony to show that the commissioners knew of any contract between the district attorney and plaintiffs at the time they made the allowances, nor did the claim as presented to the board show that it was made upon or grew out of any contract whatever. The minutes kept by the clerk constitute all the evidence upon this point, and they are thus set out in the record: "Monday, October 3d, 1870. Board of county commissioners. The following bills were examined and allowed: Clarke & Wells, (attorneys' fee in mandamus suit) five thousand dollars; allowed for four hundred." There is certainly nothing here showing that the plaintiffs' claim was made upon a contract of employment between plaintiffs and the district attorney. Indeed, we are unable to find a word in the transcript even tending to show that the commissioners had any intimation of such employment, beyond the mere fact that one of them knew the services were rendered. On the contrary, the commissioner Byron, who was present at the trial, testifies that he did not know by what authority the plaintiffs appeared in the case; and it is not shown that the others even knew the services were rendered. Now, then, here is a claim presented to the commissioners for legal services; the commissioners make a partial allowance of it; will that fact, without proof that they knew the claim was made upon a contract of employment by the district attorney, constitute a ratification of any such contract? The law is too well settled to necessitate argument or the citation of authorities that no act will amount to a ratification

Clarke v. Lyon County.

of an unauthorized contract, unless the person charged with the ratification is cognizant of all the material features of the contract which he is claimed to have ratified. But, if a full knowledge of all the essentials of the contract be necessary, how much more so the knowledge of the existence or execution of the contract itself. As it is essential to the validity of a contract that the minds of the contracting parties meet in harmonious understanding as to its tenor and provisions, so it is no less essential where it is sought to charge a party with ratifying it that he give his assent understandingly; for a ratification is after all but the execution of a contract on the part of the person ratifying it—it is the giving of his assent, without which no obligation would be imposed upon him. Hence the rule respecting ratification.

Under this rule, it is manifest if Gates had entered into a contract with the plaintiffs whereby the county was to pay them five thousand dollars for the legal services rendered, the county would not be held to ratify it, unless the commissioners were informed of the sum agreed to be paid; that would be not only a material fact, but perhaps the fact most material, to be known by them. But if information of such a fact would be essential, upon what ground can it be claimed it is not equally essential for them to know whether the services for which compensation is claimed were rendered upon contract, or gratuitously performed? If gratuitous, then it is clear the allowance of a portion of the sum claimed would not in any way entitle the plaintiffs to recover the balance, because the allowance, like the services, would simply be a gratuity; but if there were a contract upon which the claim was made, and it be held that a payment of a portion of the claim would ratify the contract, and thereby authorize the recovery of any stipulated sum, or what the services might be proven worth, as is the case here; then most assuredly it is essential that the commissioners know whether the claim is made upon a contract. It would be a doctrine no less dangerous than unwarranted by the law, to hold that county commissioners cannot make an allowance either in full or partial payment of a claim presented to them, without thereby ratifying some contract executed without authority, and entirely unknown to them. If there be any reason for the law which only holds the principal to a ratification of