
    Moore v. Pendleton and Others.
    
      Monday, June 17.
    If the principal receives and holds the proceeds, or beneficial results, of the contract of his agent, he will be estopped from denying an original authority, or a ratification.
    It is not necessary, in order to a valid contract for the sale of land by an agent, that an instrument in ryriting, empowering him to sell the land, should be acknowledged by the principal and recorded in the recorder’s office of the county where the land lies.
    A cotemporaneous parol agreement can not be set up to vary the legal effect of a written instrument.
    Where the indorsee of a promissory note alleges, in his complaint, that the note was indorsed to him by the payee, and sets out a copy of the note, with a blank indorsement, he may, on the trial, fill up the indorsement, or may recover without filling it up.
    APPEAL from the Jaohson Common Pleas.
   "W"oxíden, J.

Action by the appellees against Moore, upon promissory notes made by him to one Henry B. Hill, and by Hill indorsed to the plaintiffs.

The defendant answered in three paragraphs, to which demurrers were sustained, and exceptions taken. Final judgment for the plaintiffs.

The first paragraph alleges, in substance, that the notes were given for certain lands, which one Hiram Prather, as the pretended agent of Hill, the payee, agreed to sell to the defendant. The agreement was in writing, and is set out as follows, viz.,

“I, Henry B. Hill, by Hiram Prather, this day have sold to Lermcel Moore, of Jackson county, Indiana, the southwest quarter, &c., [here follows a full description of the land,] for the sum of $1,300, to be paid as follows: $200 to be paid in two months from this date; $200 December 25th next ;■ the balance in 12 and 18 months; all to bear interest from date, until paid. All of which is set forth by notes, bearing date herewith, for the several sums as above. It is expressly understood that said Moore shall not remove any timber from said land, until the first payment shall be made, unless ample security be given said Hill for the indemnity of the same.

“ Given under my hand and seal, May 25, 185Y. Signed in duplicate.

“Hiram Prather,

“for H. B. Hill,

“Lemuel Moore, <( seal.

The notes sued on were the second and third mentioned in the agreement. It is averred that Prather had no legal authority whatever to contract on behalf of Hill, but in this respect practiced a fraud upon the defendant.

This paragraph was bad, as we think, because although Prather's acts may have been without the authority of Hill, yet the reception of the notes by Ilill, and his indorsement thereof to the plaintiff, was a ratification of his acts, and made the contract binding upon Hill. “Generally, if the principal receive and hold the proceeds, or beneficial results, of the contract, he will be estopped from denying an original authority, or a ratification.” 1 Parsons on Cont., p. 46.

The second paragraph alleges, in substance, that ZZULhad not made to Prather a power of attorney, or other instrument in writing, empowering him to sell said land, duly acknowledged, and recorded in the recorder’s office of Jackson county, where the land is situated.

C. L..Dunham, for the appellant.

H. C. Heweomb and John Tarlcington, for the ‘ appellees.

It was not necessary, in order to a valid contract for the sale of the land, that any such instrument should be acknowledged and recorded. This paragraph is very clearly bad.

The third paragraph alleges, that at the time of the agreement, Hill, hy his agent, promised the defendant to execute to him a deed for said land, and have the same left in the hands of Thomas L. Ewing, to he delivered to the defendant upon the payment of the first note. That although the note specified had been paid, the deed had not been executed and delivered.

This paragraph is bad, because it undertakes to set up a cotemporaneous verbal agreement to vary the legal effect of the written instrument. Tucker v. Talbott, 15 Ind. 114. The written agreement set out, would not bind Hill to make the conveyance of the land until the purchase money was all paid, or tendered; and its legal effect, in this respect, can not be controlled by the verbal agreement alleged to have been made.

The indorsement of the notes by Ilill to the plaintiffs, was in blank, and it is objected that the complaint is insufficient, in not alleging that the plaintiffs were the owners thereof.

The complaint alleges that Hill indorsed the notes to the plaintiffs; and the notes, with Hill’s blank indorsement thereon, are set out. This we deem amply sufficient. The blank indorsement was sufficient to vest the title in the plaintiffs, and the blank might have been filled up, on the trial; or,, the plaintiffs might recover without filling up at all. Clark v. Walker, 6 Blackf. 82; Bowers, v. Headen, 4 Ind. 318.

Per Curiam.

The judgment below is affirmed, with 5 per cent, damages and costs.  