25 S.D. 177 | S.D. | 1910
This cause was before this court and the judgment of the lower court reversed in an opinion to be found in 22 S. D. 226, 117 N. W. 128. Upon application of respondent rehearing was granted, and the cause is now before this court on ■such rehearing. Plaintiff below, and respondent here, sought to recover from defendant $381.60, being the alleged value of certain grains, claimed to be owned by respondent, and which respondent claims defendant wrongfully and unlawfully converted to its own use. A verdict .was rendered and judgment thereon entered in favor of plaintiff. Motion for new trial was overruled, and defendant brings the cause to this court alleging insufficiency of the evidence to sustain the verdict and also assigning various errors.
Appellant first contends that the evidence is insufficient to justify the verdict. On few of the material issues there was sharp conflict in the testimony. The verdict of- the jury has settled all such conflicts in favor of plaintiff, and the case for our consideration stands substantially as above stated. We are of the opinion -that the evidence was sufficient to sustain the verdict. On trial, when plaintiff offered the lease purporting to have been signed by John W. Brennan and N. J. Hunt in evidence, defendant objected to the same on the ground -that it was incompetent, immaterial, and irrelevant, being an instrument between persons not parties to the action or in any way connected with it; that it is an instrument in the nature of a chattel -mortgage and is not executed in accordance with the laws of the state of South Dakota; that the instrument is not acknowledged and does not prove itself; that it is immaterial because there -is no proof of notice to the defendant of the contents of -the instrument; that no foundation has been laid, in that, under the statute of frauds, this being an instrument purporting to be a lease, for more than one year, must be in writing, and, if ’signed by an agent, the authority of the agent must be in writing. The objection was overruled and exception taken by -defendant. This ruling of the court is now assigned as error. We are of the opinion that the ruling was correct. It appeared from the ^evidence of subscribing witness
It is further urged' by appellant that the lease contract was not .to be performed within one year and must be in writing, and, where signed by an agent, the authority of the agent to- sign the principal’s name thereto must also be in writing", and, there being-no evidence that at the time this lease was executed the agent had any such written authority, that the lease was void, and that by reason thereof plaintiff should not recover against defendant. Under some circumstances, a lease so signed by an agent, where the authority of the agent to -sign was not shown to be in writing, the lease would be held to be void; but under the allegations of the complaint and the issues presented in this case that the said Brennan had taken possession of said land under said lease, and that under and by virtue of such lease had raised something over 10.000 bushels of grain thereon, neither Brennan nor any one claiming under him with notice of the -terms and conditions of said lease would be permitted to assert the invalidity thereof. The defendant having purchased -the grain from Brennan and his subtenant, also- w-ith notice of -the terms and conditions of such lease, must defend under or through Brennan’s right. Whatever would estop Brennan would also estop defendant, as under such circumstances defendant would occupy no better position than
It seems to be generally held that, where one having the right to- accept or reject the transaction takes and retains the benefits thereunder, he becomes bound by the transaction and cannot avoid its obligation or effect by taking a position inconsistent therewith. Thus it has been repeatedly held that a person by the acceptance of benefits may be estopped from questioning the existence or validity of a contract. 16 Cyc. 787. This result would follow in the case at bar regardless of the question of the ratification of said leáse. Hence, from the fact that Brennan took possession under said void lease (assuming that it was void) and by himself or some undertenant enjoyed the use of the premise's under such lease and grew over 10,000 bushels of grain thereon, he should not be heard to say that such lease was invalid for the year 1904. Under all the authorities we have -been able to find this lease was valid for at least one year— the year 1904. Appellant also claims fhat there is no evidence showing title in the premises to have been in N. J. Hun-t at the time the lease was executed or at any other time. This is another question that neither Brennan nor his assigns nor any one claiming under him can question. 24 Cyc. 939; 18 Am. & Eng. Ency. 417. Brennan is estopped from asserting that his landlord had no title,' and so are those holding under him with notice of the equities in favor of the plaintiff.-
Appellant also contends -that the paper purporting to- ratify or approve the agency and authority of E- G. Dobbs to sign the name of N. J. Hunt to said lease was ineffectual because prior to the date of such ratification N. J. Hunt had on October 13, 1904,
Defendant has made some 48 assignments of error, many of which relate to the reception and exclusion of evidence, and exceptions to the instructions of the court; but, after careful consideration of the whole thereof, we are of the opinion that no reversible error exists therein.
The judgment and order denying a new trial are affirmed.