120 Kan. 662 | Kan. | 1926
The opinion of the court was delivered by
On October 23, 1922, C. W. Beeler sold to E. D. Sway-ze 933 steers for $47,910, taking a chattel mortgage on them for the full amount. On February 18, 1923, Swayze sold 300 head
The defense was based on two propositions — that the plaintiff had authorized the sale by Swayze, and that by his later conduct he had ratified the transaction after learning the facts regarding it. The jury in response to special questions found against him on each. The plaintiff contends there is no evidence to support either theory.
There are several quite different situations in which it might be said that Swayze had a right to sell the mortgaged cattle.
(1) He could, regardless of the plaintiff’s attitude, sell his own interest in the cattle — sell them subject to the mortgage; that is, he could give title to the purchaser, although to do so without the mortgagee’s permission might by the terms of the mortgage have accelerated its maturity. His power to do this, however, or his doing it, could not affect the plaintiff’s lien. And we interpret the evidence as showing that this is what actually took place. Lind and Hyle seem to have been willing to pay Swayze for the cattle and trust to him to see that the mortgage was satisfied either out of the money paid him or from some other fund, that matter being immaterial to them.
(2) He might, with a valid permission from the plaintiff, have sold the cattle free from the mortgage, taking and retaining in himself the title to the proceeds, and leaving the plaintiff as a mere un
Or (3) Swayze, with authority from Beeler, might as his agent have made a sale, holding the proceeds as the property of his principal. This seems to be the construction sought to be placed on the transaction in the defendants’ brief. We do not find in the testimony just quoted nor elsewhere in the record anything tending to support that theory. Swayze apparently did not suppose he was under an obligation to turn over to Beeler all he had received for the mortgaged cattle. When Beeler reminded him that the Hyle check was not all the purchase price, he answered: “No, sir; it’s not all the purchase price, but about the average of what they cost me.” He said: “I told him about the expense of the cake, etc., but I figured that was what I owed for the' cattle.” He testified:
“When you sold these cattle to Hyle and Lind, you sold them as your own cattle? Sure, I did.
“On your own account? On my own account.
“You didn’t sell them as anybody else’s cattle? No.
“On your own account? I sold them as my cattle.
“In that transaction you pretended to act for yourself and nobody else? Yes, sir.”
Concerning knowledge of the mortgage Lind said:
“I didn’t go to the record, but I asked Swayze if they were mortgaged out*665 at the farm. I would like to change that statement. I don’t know as I asked him either. The question came up; I don’t know whether I asked him; it was brought up when we were tally branding. I took it for granted then that the cattle were mortgaged.”
It results from what has been said that the finding of the jury, that at the time Swayze sold the cattle in question to Lind he had authority from Beeler to make such sale, is without support in the evidence unless it should be interpreted as meaning merely that Swayze had a right to sell the cattle subject to the mortgage against them. The judgment therefore cannot be upheld unless upon the ground that his conduct after the sale was such as to destroy his lien.
The term “ratification” has been used as describing such conduct. There was, however, upon any view of the evidence, no ratification by Beeler of a sale made by Swayze as his agent, for Swayze did not profess to be acting in that capacity in selling the cattle, but acted avowedly for himself alone, and in that situation there was no opportunity for ratification in the ordinary sense. (2 C. J. 474-475; 21 R. C. L. 923; Story on Agency, § 251.)
“Since the effect of ratification is to confirm the act as done, it is indispensable, in order to have an act of agency, that the act ratified must have been done by the assumed agent as agent and in behalf of a principal. If the act was done by him as principal and on his own account, or on account of some third person, it cannot thus be ratified.
“And not only must the assumed agent have intended to act as agent for the person ratifying, but, as declared by the house of lords after most elaborate consideration and according to the weight of authority in the United States, he must have professed to act for a principal, though it is not necessary that he should have disclosed who that principal was if he be capable of identification within the rule already laid down.” (1 Mechem on Agency, 2d ed., § 386.)
The defendants urge that there are exceptions to this rule, and cite Latham v. National Bank, 40 Kan. 9, 18 Pac. 824, as presenting one of them, contending that there is a close analogy between that case and this. There one in charge of another’s cattle in which he had an interest mortgaged them in his own name. The proceeds were used for the purchase of cattle to increase the herd. The mortgage was held valid against the owner, who with knowledge of its existence, at the request of the mortgagor, remained silent about his ownership for some two years. In the opinion the owner was said to have ratified the act of the mortgagee, but the decision was founded on what amounted to estoppel and negligence of the owner.
The defendants strongly urge, however, that in obtaining Mrs. Swayze’s signature to the $2,000 mortgage after he had learned that more than 200 head had been sold he created a situation such as to warrant a finding that the lien of his mortgage was lost as to the entire 285 head. We do not think this contention sound. When Beeler was informed that Swayze had sold and received the money for 200 head, the two made an adjustment of the matter by which the 200 head were to be freed from the lien and Beeler was to receive from Swayze a proportionate amount of the mortgage debt (less the $900 spent for feed), a part of this .being paid by turning over Hyle’s check for $10,748 and the rest provided for by the note and mortgage for $2,000. When Beeler found that his mortgage was worthless because the cattle it described belonged to Mrs. Swayze he naturally tried to get her to remedy this situation by signing it, and his effort was successful. We see nothing in the fact of Mrs. Swayze having signed the mortgage, or in anything that was said or
The case differs from that presented upon the first appeal in that here the jury specifically found that at the time of the adjustment between Beeler and Swayze, Beeler had not been undeceived as to the number of cattle sold. Treating this finding as settling that matter, we hold that the evidence does not permit a judgment for the defendants. The other findings, with three exceptions to be noted, are consistent with what has been said and with this conclusion. A finding that Swayze had authority from Beeler to sell the cattle has already been referred to, the reasons being shown for not giving it effect. The jury returned a negative answer to the question whether the amount of the $2,000 mortgage was arrived at by figuring the amount due upon a sale of 200 head of cattle reported by Swayze. The answer may be regarded as correct by considering that $900 was deducted from the amount so arrived at. The jury found that Beeler’s act in accepting the chattel mortgage for $2,000 signed by Mrs. Swayze amounted to a ratification of the sale, as the term was explained in the instructions. So far as this finding is other than a conclusion of law, we think, upon grounds already sufficiently indicated, it was not sustained by evidence.
The judgment is reversed, with directions to render judgment for the plaintiff.