Birch v. Hall

¶1I concur in that part of brother Martin’s opinion holding that the answer pleads a counter-claim, which the plaintiff admitted by failing to reply, and that the court erred in refusing to so hold, for which error the judgment must be reversed; but I cannot agree that the-case contains sufficient evidence of ratification by the plaintiff of defendant taking and collecting the three notes, to sustain a holding, as a matter of law,that plaintiff ratified defendant’s acts. In the autumn of 1886, at Willard asylum, the parties talked about defendant having some of plaintiff’s property in his care, but she swears “the subject of these particular notes was not-mentioned; nothing was said about his collecting notes, getting the money *750.on them,” etc. I fail to find any evidence that plaintiff then knew the defendant had taken and collected these notes. I think the question of ratification was one of fact, and should have been left to the jury, with instructions that, ■if they found there was no ratification, no demand was necessary; but, if there was a ratification, no recovery eouíd be had without a demand. The judgment should be reversed, and a new trial granted, with costs to abide the .event.