by an agent, is evidence that he had authority to sign it.72 Proof that one was in the habit of signing similar policies in the name and as the agent of another, and with his knowledge, is also evidence of his authority to sign the particular policy in question;73 and if the principal has been in the habit of paying the losses upon policies so signed in his name, this has been held sufficient proof of the agency, though the authority was not conferred by an instrument in writing.74 And an authority to sign a policy has been held sufficient evidence of authority to adjust the loss. Where the principal, in an action against him on a policy signed by the agent, used the affidavit of the agent to support a motion to put off the trial, in which the agent stated that he subscribed the policy for and on account of the defendant, this was held a ratification of the signature.76 So, where a city had paid for work on its streets, done under the direction of the city marshal, this was held sufficient to show that the work was authorized by the city, and it was held liable for injury to a traveler because of the negligent manner in which the work was done.” Long acquiescence of the principal, after knowledge of the act done for him by another, will also, in many cases, be sufficient evidence of a ratification. If no agency actually existed, the silence or mere acquiescence of the principal may well be taken as proof of a ratification, although it is not every case in which silence alone will be sufficient. If the silence of the principal is either contrary to his duty, or has a tendency to mislead the other side, it is generally conclusive. Such, it is said, is the case among merchants, when notice of the act done is given by a letter which is not answered in a reasonable time. Whether

construed as a ratification of acts outside the scope of the agent: Robinson, &c. Co. v. Nipp, 20 Ind. App. 156, 50 N. E. 408; see also, Lent v. Padelord, 10 Mass. 230p; but see Episcopal Ch. Soc. v. Episcopal Ch. in Dedham, 1 Pick. (Mass.) 372; Kupfer v. Augusta, 12 Mass. 185; Odiorne v. Maxcy, 13 Mass. 178; Herring v. Polley, 8 Mass. 113; Pratt v. Putnam, 13 Mass. 361; Fisher v. Willard, 13 Mass. 379; Copeland v. Merchant's Ins. Co., 6 Pick. (Mass.) 198.

12 Courteen v. Touse, 1 Campb. 43, N. E. 27. D, 2 Stark. Cas. 368.

VOL. 3 ELLIOTT Ev. —6

a mere voluntary intermeddler, without authority, is entitled to the benefit of the principal's silence, is not clearly agreed, but the better opinion, it is said, is, that "where the act was done in good faith for the apparent benefit of the principal, who has full notice of the act, and has done nothing to repudiate it, the agent is entitled to the benefit of his silence as a presumptive ratification."78

79

§ 1640. Parol evidence.-The subject of the admissibility of parol evidence to show the agency and extent thereof, has already been considered in this chapter, and other phrases of the general subject have been considered in another volume. It may be well, however, to refer to a few recent authorities. In a late text book it is said that while extrinsic evidence is generally inadmissible to vary or contradict the contents of a written instrument, yet "such evidence is always admissible to charge with liability an undisclosed principal, or one who, though disclosed, is not named in the instrument."so And in a recent case it is held that an action on a contract, apparently signed by one person as principal and another as witness, parol evidence is admissible to show that the former had no real interest but merely signed for the accommodation of the latter, who did not want to appear as a party, and that the latter was the real party in interest.81 So, in another recent case, it is held that although a note executed by the directors of a corporation imports a personal liability, it may be shown by parol, on an issue of reformation, that the intention of all parties was to execute an instrument binding the corporation alone.82

78 2 Greenleaf Ev., § 67, citing, Story Agency, §§ 255-258; Amory v. Hamilton, 17 Mass. 103; Kingman v. Pierce, 17 Mass. 247; Frothingham v. Haley, 3 Mass. 70; Erick v. Johnson, 6 Mass. 193; see also, Union &c. Co. v. Rocky Mt. Bank, 2 Colo. 248, 259. There is a stronger presumption of knowledge where an agent has merely exceeded his authority than there is where the act was performed by one who was not an agent before the act: Hyatt v. Clark, 118 N. Y. 563, 23 N. E. 891. An affirmative ratification is held necessary in such a case in: Ward v. Williams, 26 Ill. 447, 79 Am. Dec. 384.

79 See Vol. 1, § 616.

80 Rheinard Agency, § 223; see also, Ford v. Williams, 21 How. (U. S.) 289; Exchange Bank v. Hubbard, 62 Fed. 112, 10 C. C. A. 295; Byington v. Simpson, 134 Mass. 169, 45 Am. R. 314; Briggs v. Partridge, 64 N. Y. 357, 21 Am. R. 617; Higgins v. Senior, 8 M. & W. 834.

81 Curran v. Holland, 141 Cal. 437, 75 Pac. 46. This certainly could not be the rule, however, in all cases, at least when persons in good faith were misled to their prejudice without fault on their part.

82 Western &c. Scraper Co. v. Mc. Millen (Neb.), 99 N. W. 512; see also, Vol. 1, § 616; Keidan V.

$1641. Revocation and termination of agency. The proof of agency to charge the principal may be rebutted by showing that his authority was revoked and due notice thereof given or had, prior to the act in question.83 But if he was constituted by writing, and the written authority was left in his hand subsequent to the revocation, and he afterwards exhibits it to a third person, who deals with him on the faith of it without notice of the revocation, or the knowledge. of any circumstances sufficient to have put him on his guard, the act of the agent, within the scope of the written authority, will bind the principal. And, generally, where notice is not given to third persons and the circumstances are such that they have a right to rely on the continuance of the agency until notified, the acts of the agent within the scope of his apparently continuing authority will usually bind the principal.85 Where the agency is not coupled with an interest, and there is nothing else to prevent a revocation, it may be express or implied, and may be by parol even where the authority was in writing.se

86

84

Winegar, 95 Mich. 430, 54 N. W. 501, 20 L. R. A. 705, and note; Western &c. Scraper Co. v. Stickleman, 122 Iowa 396, 98 N. W. 139; 4 Thompson Corp., § 5141.

Gunter v. Stuart, 87 Ala. 196; Clark v. Mullenix, 11 Ind. 532; Johnson v. Youngs, 82 Wis. 107, 51 N. W. 1095. Notice may be given by the agent, and may also be implied: Vail v. Judson, 4 E. D. Smith (N. Y) 165; Williams v. Birbeck, Hoff. Ch. (N. Y.) 359.

Beard v. Kirk, 11 N. H. 397; but see, where notice was given: Clark V. Mullenix, 11 Ind. 582.

Insurance Co. v. McCain, 96 U. S. 84; Johnson v. Christian, 128 U. S. 374, 9 Sup. Ct. 87; McNeilly v. Continental Life Ins. Co., 66 N. Y. 23; Quinn v. Dresbach, 75 Cal. 159, 7 Am. St. 138; Foellinger v. Leh, 110 Ind. 238, 11 N. E. 289; Fellows v. Hartford &c. Co., 38 Conn. 197; Anonymous v. Harrison, 12 Mod. 346. So, if, under such circum

stances, one properly makes a payment to the agent, the principal can not hold the person making it liable therefor: Ulrich v. McCormick, 66 Ind. 243; Packer v. Hinckley Locomotive Works, 122 Mass. 484; Meyer v. Hehmer, 96 Ill. 400.

s6 Brookshire V. Brookshire, 8 Ired. L. (N. Car.) 74, 47 Am. Dec. 341; Rochester v. Whitehouse, 15 N. H. 468; Copeland v. Mercantile Ins. Co., 6 Pick. (Mass.) 198. As to revocation or termination by death, disposition of the property or subject matter, and the like, see McClaskey v. Barr, 50 Fed. 712; Lincoln v. Emerson, 108 Mass. 87; Johnson v. Wilcox, 25 Ind. 182; Galt v. Galloway, 4 Pet. (U. S.) 332, 344; Companari v. Woodburn, 15 C. B. 400, 80 E. C. L. 400; Simonton v. Minneapolis &c. Bank, 24 Minn. 216; Walker v. Denison, 86 Ill. 142; Comley v. Dazian, 114 N. Y. 161, 21 N. E. 135.

§ 1642. Generally.-The right of a husband to recover damages from a third party for alienating the affections of his wife has long existed at common law; and as early as 1747 we find a decision which clearly recognizes this right. But there are no cases in the long line of English decisions at common law where the wife has been able to maintain an action against one alienating the affections of her husband. This is explained by the fact that the wife was under certain disabilities as a result of coverture under the common law. It would have been necessary under the common law for the husband to have joined in the action, and all damages, if collected during the lifetime of the husband, would have been the property of the husband. The wrongdoer would thus have reaped a profit from his wrongdoing.2

1

1 Winsmore v. Greenbank, Willes 577; Berthon v. Cartwright, 2 Esp. 480; cited in Hodge v. Wetzler (N. J.), 55 Atl. 49; Barbee v. Armstead, 10 Ired. L. (N. Car.) 530, 51 Am. Dec. 404; Tasker v. Stanley, 153 Mass. 148; Glass v. Bennett, 89 Tenn. 478; Hermance v. James, 47 Barb. (N. Y.) 120, 32 How. Pr. 142; Adams v. Main, 3 Ind. App. 232; Bigaouette v. Paulet, 134 Mass. 123, 45 Am. R. 307; Holtz v. Dick, 42 Ohio St. 23, 51 Am. R. 791; Hadley v. Heywood,

121 Mass. 236; Rinehart v. Bills, 82
Mo. 534, 52 Am. R. 385; Higham v.
Vanosdol, 101 Ind. 160; Bennett v.
Smith, 21 Barb. (N. Y.) 439; Ram-
sey v. Ryerson, 24 Abb. N. Cas. (N.
Y.) 114; Preston v. Bowers, 13 Ohio
St. 1, 82 Am. Dec. 430; Edgell v.
Francis, 66 Mich. 303; Gilchrist v.
Bale, 8 Watts (Pa.) 354, 34 Am.
Dec. 469.

2 Hodge v. Wetzler, (N. J.) 55 Atl. 49; Bassett v. Bassett, 20 Ill. App. 544.

Although no woman has ever recovered in an action of this kind at common law, and it is not until 1861 that we find any allusion to the existence of such a right of action in favor of the wife, in the decisions and treatises upon the common law, yet there are many American decisions holding that independent of any enabling statute, still a substantive right exists and that such an action could be maintained according to the rules of common law. The rule, sustained by the weight of authority, however, is that by reason of the disability of coverture the right of action remains in abeyance and cannot be presented by the feme covert in her own name, where the common law prevails. But where the law of coverture has been removed by