42 P. 503 | Idaho | 1895
This is an action brought by plaintiff against defendant, as sheriff of Shoshone county, to recover amount •alleged to be due to plaintiff for fees as keeper of certain property seized under attachment by the defendant as sheriff aforesaid. The property attached was the Custer Mill, situated in said Shoshone county. Writ of attachment was levied on May 1, 1893, and plaintiff was put in as keeper by one Hardesty, a deputy of defendant, at an agreed compensation of three dollars per day, and so remained in possession and charge of said property as keeper until June 30, 1894. During all this time the defendant was sheriff of said county, and must of necessity have known of the whole transaction between his deputy and the plaintiff. To presume otherwise would be to impeach both the integrity and capacity of the sheriff. Hardesty, the deputy who employed plaintiff, is dead. It is now claimed by defendant that, as plaintiff was employed by his deputy, he (defendant) is not liable for his fees. What was this sheriff doing during the fourteen months that plaintiff was acting as keeper of said property? Is it possible the sheriff of Shoshone county would hold property of tins magnitude and value under attachment for a period of fourteen months without knowing who was the keeper, ■or what his compensation was to be ? And, moreover, the plaintiff offered to prove the subsequent ratification of his employment by defendant, and the defendant’s promise to pay therefor, which offer was rejected by the district court. The district •court refused to permit plaintiff to make any proof of his claim under his pleadings, for the reason that his complaint alleged a ;a contract made with the sheriff, and his proposed proofs showed ■a contract with a deputy. "Qui facit per aliurn facit per se” is a maxim peculiarly applicable to cases of this kind. Again, the .acquiescence for a period of fourteen months by the sheriff in the service of plaintiff was a palpable ratification of the act of