Genter v. Conglomerate Mining Co., 23 Utah 165

Genter v. Conglomerate Mining Co.

23 Utah 165 | Utah | 1901

Lead Opinion

After stating the facts, as above,

MiNer, J.,

delivered the opinion of the court.

1. The appellants claim in argument that the evidence is insufficient to justify the verdict, but the exception taken or the petition in error does not specify the particulars in *175which such evidence is insufficient under section 3284, and hence we can not review that question. Van Pelt v. Park, 18 Utah 141, and cases cited.

2. At the commencement of the trial and also after the plaintiff’s testimony was closed, the defendants moved that the plaintiff elect whether to proceed against the defendant company or against Lavagnino, and claim that there was no joint-liability or contract on the part of the appellants. Appellants also except to the instructions of the court upon that subject, and the refusal of the court to give defendant’s requests on the same subject, claiming that if any promise was made by the agent on behalf of his principal, but without authority, and whether authorized or not only one of the parties could be made liable in any event; that if the promise was unauthorized, then the agent only could be made liable, but if authorized, and the agency was disclosed, then the principal only was liable.

On the part of the respondent it is insisted that the action was brought against both defendants upon the promise of both that he should be paid the 'commission named if he found' a purchaser at the price offered, and that the property was owned by both.

The court refused to grant a nonsuit or to direct plaintiff to elect which of the two parties he should proceed against. There was no error in this refusal on the part of the court.

Whether or not there was a promise by Lavagnino, personally, or by him as agent of the company, to pay the commission, and a subsequent ratification by the company of his acts; whether the respondent was acting as the agent of the purchasers and also of the sellers, or as a middleman, and whether or not he received a commission from the purchasers and agreed to divide-it with Lavagnino were all questions of fact for the jury, under proper instructions. The jury were instructed, among other things, in substance: 4. The jury *176•are further instructed that if they find from a preponderance of the evidence that the defendant, Lavagnino, had power to negotiate for the sale of the property of the defendant corporation, such power carried with it as an incident the power to do all those things which are necessary, proper and reasonable to be done in order to effectuate the purpose for which it was created, and all proper means to accomplish the desired end, and all third persons dealing with such agent would have a right to presume that he had been invested with all such powers.

7. You are further instructed that a recovery can not be defeated on the ground that the plaintiff was to receive compensation for his services from the purchaser, if you believe that the plaintiff was only a middleman, and had no discretion but brought the parties together to make their own contract.

8. You are further charged that although you may believe from the evidence that Lavagnino was not authorized to act for the defendant company, but that he did pretend to act for it, and made a contract in its behalf, and that the corporation acted upon that contract, that would amount to a ratification and acquiescence in all acts of the agent which were proper and necessary to the consummation of the transaction.

9. While as a general rule ratification or acquiescence does not take place unless the principal has knowledge of the material fact, I charge you that in this case if you believe that the president, manager and director of the defendant company had knowledge of the facts in connection with the sale of the defendant’s property, and as such he acted with the board of directors, or at a meeting of the stockholders, himself voting a majority of the stock, upon the matters .to which his information relates, the strongest duty rests upon such person to communicate his information, and it should be presumed as against the corporation that he has done so.

10. You are further instructed that ratification of, or *177acquiescence in the acts of a person professing to act for another is equivalent to an original authority.

16. If the jury find that the promise of Lavagnino to pay Genter $10,000 was that, that sum should be taken from a $50,000 to be paid to Lavagnino for himself, and if the jury find that no sum was to be paid to Lavagnino for himself, then Lavagnino is not liable to Genter.

17. If the jury find that Lavagnino promised to pay $10,000 out of $50,000 to be paid to him, then in that case the action must be against Lavagnino alone and plaintiff can not recover against the company.

20. If the jury find that Lavagnino entered into a contract with Genter relative to his commission by which he, La-vagnino himself became liable, then notice to him of that contract, or any liability, or condition or consequence of the same would not be notice to the company, no matter how large a proportion of the shares of stock he might have owned or represented, and if he was not authorized to make the contract in the first place, for the company, it could not be ratified by any subsequent act of his own.

The court further instructed the jury that if they found from the evidence that the defendants agreed to pay the plaintiff $10,000 in case he found a purchaser at $550,000, and plaintiff found such purchaser for the mine, and that defendants agreed upon the terms offered, then the plaintiff was entitled to recover against both defendants; or should they find that both defendants did not promise to pay plaintiff the stated commission, then the plaintiff was entitled to recover from the one who did make the promise.

The jury found the facts in favor of the plaintiff.

Under the facts and the instructions given the jury foupd that Lavagnino made a promise on behalf of the company, which *178was ratified, and upon bis own behalf. There was evidence tending to show that Lavagnino had a personal interest in effecting the sale of the Conglomerate property, and that interest was not shown to be hostile to that of the company. He expected to have a large commission from the company if the sale was made. A large shareholder, and manager of the foreign corporation had informed him that he should have a commission on sale of the property. Renove, had cabled him and offered him $20,000; a large stockholder and officer had wired him to take $30,000, and that was the intention. A part of the property sold by the company to Eight was conveyed to it by Lavagnino after he had agreed to pay the commission to the plaintiff. Both Lavagnino and the company had an interest in the property sold, and in selling it. The whole purchase price was paid to the company and distributed to the stockholders by Lavagnino, except about $30,-000, which he still retains. Iiis acts as manager of the mine and in the conduct of the sale were expressly ratified by the board of directors and the stockholders at a meeting where Lavagnino held proxies and voted nearly the entire stock of the company.

Among other rights possessed by the company was the right to buy and sell mines. Mr. Lavagnino had held and1' dominated the policy of the company; bought and sold mines without direction or hindrance, and transacted the whole business of the company, and his acts were always ratified by his board of directors, and through him and his proxies by the stockholders. Lavagnino held 980,000 shares and the stockholders knew all about what occurred. When he signed the corporate name of the company to the contract of sale recognizing therein the agency of the plaintiff in the premises, he was acting for the company and within his powers, as such acts were subsequently ratified by the company which received the purchase price and directed a conveyance to the purchasers.

*179The question is whether, an agent can bind his principal and also make an independent promise on his own behalf so as to bind himself.

The contention on the part of the appellants that when an agent only promises on behalf of his principal, and not on his own behalf, both can not be held, is doubtless correct, but when an authorized agent makes a promise on behalf of his principal which is afterwards ratified, and on his own behalf also, both may be held. By ratifying an unauthorized act the principal adopts it as his own. This adoption goes back to the inception and continues to its legitimate end. The principal can not be allowed to avail himself of the benefits of a contract and still repudiate its obligation. Mechem on Agency, sec. 167.

It is also a rule of law that a power given to an agent to do certain acts and transact certain business, carries with it the authority to do whatever is usual or necessary to carry into effect the principal power. 1 Am. and Eng. Ency. of Law (2 Ed.), 997.

The questions submitted to the jury were questions of fact, and they found under the instructions of the court that both defendants made the promise and held both liable.

Under all the circumstances we find no reversible erro)’ in the refusal of the court to compel an election, nor in refusing to grant the appellants’ motion for nonsuit. Nor do we find that the court erred in refusing to give the instructions asked by the appellants. Neither do we find any error in the instructions given to the jury.

4. The appellants requested the court to submit special findings to the jury, which request was refused. This was within the discretion of the court, and the refusal to submit' such findings was not error. Sec. 3163, R. S. 1898; Webb *180v. Railroad Co., 7 Utah 17; Mangan v. Mining Co., 15 Utah 554; Olmstead v. Dauphin, 38 Pac. 505.

5. It is also contended by the appellants that the plaintiff entered into a secret agreement by which he was to receive compensation or commission from both buyer and seller, and that therefore the agreement on the part of the defendant company to pay a commission was against public policy and void. There was a conflict in- the testimony on this subject. The plaintiff testified that no contract was made with the buyers whereby he was to receive a commission from them, and that in fact he never received any commission from them; that through the advice of Lavagnino he wrote to obtain such commission but the buyers, through their agents, refused to contract for or allow him any commission. The court instructed the jury that if such contract was made by the plaintiff with the buyers, and he acted as their agent in making the sale he could not recover from the defendants. The jury by their verdict must have found a state of facts that negatives the contention of the appellants.

The question was properly submitted to the jury and their findings are final. The several instructions given sufficiently covered the law of the case.

Upon the whole record we find no reversible error. The judgment of the district court is affirmed with costs.

Bartch, 0. J.., concurs.

Dissenting Opinion

BASKIN, J.

(dissenting).—It clearly appears from the evidence that Lavagnino, in making the sale in question, acted in the capacity of agent of the defendant company; that he was president and general manager of the company and owned a large number of shares of stock of the company. In relation to the commission sought to be recovered by plaintiff, he testified, as follows: “I called upon him (Lavagnino) again *181and we talked tbe matter over. After be stated tbe price, I asked bim wbat my commission would be. He said, after figuring awhile, be marked on a pad in bis desk, $10,000 and pushed it over to me. I said $10,000 ? lie said ‘Yes $10,000, your commission will be $10,000.’ ”

On cross-examination be said: “There was a talk about tbe commission tbe night of tbe twenty-ninth (January) after be named tbe price of tbe property, and it was settled that- I should wire them (tbe Boston parties) tbe price. I asked bim wbat there was in it for me. Mr. Lavagnino was sitting at bis desk with a pencil and scratch pad. He figured a while, put down tbe figures ten thousand dollars, and pushed it over to me. He did not say that out of tbe $50,000 commission be would pay me $10,000. I bad a conversation with Lavagnino about tbe fifteenth of March, when tbe first payment was made. I spoke to him about tho commission due me from tbe company; I don’t remember tbe words, I remember I stated be was about to receive tbe half of tbe purchase price of tbe property, $275,-000, that was to be paid in that day, and I asked bim if be would pay me tbe commission that day, be stood me off by saying be wasn’t ready to pay it; be says, well, I will pay you, but I want to see FrankLn; it ended right there, and I attached tbe money in tbe bank.”

Lavagnino, on February 3, 1899, sent a letter to tbe plaintiff in which be said: “From wbat you intimated your eastern friends seem to me already more acquainted with the property than yourself, and ought to have no difficulty in approaching me directly. You will have only to see that they-do so under your auspices as your friends and that they purchase the_ property at tbe figure mentioned, and I will undertake to pay you- the commission mentioned.”

Tbe defendant, Lavagnino, stated,'in bis testimony: “I said to bim (tbe plaintiff) I am going to figure on a price to *182be paid to the company. I want yon to know that over and above that price I will fix a sum to be paid by your friend or your party to me, and I figured up a price there. Finally I wrote on a piece of paper, called his attention. I had written it down — $500,000 to be paid to the company, after that I made 'plus $50,000.’

Q. Mr. Stephens: Have you that memorandum? A. Yes sir, while I was figuring that commission, Mr. Genter said we will make it large enough to include something for me. I did not answer that question, but after I showed him the paper he said, 'Well, where do I come in?’ Opposite the fifty thousand dollars I made a mark like that, and said $40,000 Lavag-nino, then I marked $10,000. I didn’t put the name Genter, but it was understood it was for Genter.”

The foregoing is all the testimony in support of an agreement to pay the plaintiff the commission claimed by him.

While it is clear from the evidence that Lavagnino agreed to pay the plaintiff a commission it is equally clear to me that the evidence fails to show any joint agreement by the defendant.

It is elementary that the construction of a contract, whether written or oral, or partly written and partly oral, when the terms are not disputed, or are established beyond doubt, and are not ambiguous, is a matter for the court and not the jury.

In the case at bar, if all that the plaintiff stated be taken as true, a joint obligation is not shown, and therefore the judgment is erroneous.

I can not concur in the opinion of my associates.