Carter v. Mickelberry

263 F. 548 | 7th Cir. | 1920

EVANS, Circuit Judge (after stating the facts as above).

Plaintiffs, if entitled to any judgment, were admittedly entitled to recover the full amount of their claim. There was no dispute over the amount due on the note. The judgment for the sum fixed by the jury was therefore clearly erroneous. A reversal necessarily follows, unless we accept defendant’s contention that the record clearly shows a situation where his motion for a directed verdict should have been granted.

Plaintiffs’ right to recover rests solely upon defendant’s acceptance of the deed with its mortgage assumption clause. During the trial defendant’s counsel asserted their reliance upon this position, and their pleadings are in harmony with no other theory. Obviously the presence of this assumption clause in the deed sent by Bradbury would not bind defendant, unless the defendant accepted the deed.

Upon this single issue of acceptance the record is unusually free from dispute. The deed was delivered by Bradbury to one D., a real estate agent, who represented defendant in the transaction, but ■ who was clearly and admittedly without authority to accept a deed wherein defendant obligated himself to pay this large note and mortgage contrary to the terms of the written agreement. This was conceded upon the trial by plaintiffs’ counsel, for, when certain testimony was offered, they made their position clear. The following colloquy took place:

Court: I don’t know what this deed is, of course. If this deed is the one that is in dispute in this case, before the grantee would be bound by an assumption dictated by his agent, that agent must have had the same power to convey or to transact the business—

Mr. A.:. There is one exception to the general rule, and that is where the principal afterwards ratifies the act of the agent, and then it is equivalent to formal authority in the first instance. *

Court: A subsequent ratification shown would render this competent, but not otherwise.

Mr. A.: Yes, sir; and that is what we offer to prove.

Court: Well, under that promise to the court, etc.; but it will be excluded if it does not come within the exception.

The deed was delivered by the agent to the defendant just as he was leaving the city on April 3d. Defendant placed it in his desk, without opening the envelope that contained it, and did not read it until his return the next evening. The following morning plaintiffs appeared upon the scene, and were told by defendant that he refused to accept tire deed with the assumption clause therein. His letter to Bradbury, written on the same day, wherein he called, attention to the mistake, and asserted his unwillingness to accept such a deed, and demanded a new one, followed by his personal visit, wherein the same position was announced and the same demand made, is entirely consistent with, and tends strongly to support, his claim that he did not and would not accept the deed. This testimony is undisputed. In fact, it is confirmed by the statement of Bradbury and both plaintiffs.

Nor is there a conflict upon this issue of acceptance arising out of Bradbury’s statement that the prior agreement between himself and defendant was erroneously reduced to writing, and that on such occasion the defendant agreed to assume this indebtedness. While the written agreement contradicted this statement, it is quite immaterial to the issues in this case what the oral or the written agreement was, for plaintiffs have chosen to plant their action, not upon any prior oral agreement, but upon the assumption clause in the Bradbury deed and the acceptance thereof by defendant.

Nor have we ignored tire urge of plaintiffs that the note and mortgage assigned by Bradbury at the time of the delivery of the deed were sold by the defendant and the proceeds thereof retained by him. That this sale occurred before defendant discovered that the Bradbury deed contained the assumption clause is uncontradicted. It can therefore have no bearing upon the issue of acceptance of the deed. The record conclusively showing no acceptance of the Bradbury deed by defendant, the motion to direct a verdict in his favor should have been granted.

Inasmuch as defendant has, however, waived the error in the jury’s verdict against him, the judgment is affirmed.