258 P. 179 | Idaho | 1927
Respondent, in 1920, sold or consigned to appellant, individually or as agent of Jerimiah Williams Co., of Boston, Massachusetts, his wool clip, for which he received through the First National Bank of Dillon, either as the purchase price or as an advance, 25 cents per pound. The price of wool declining there occurred a deficit after the payment of freight, storage, commissions, etc., of *438 $2,508.22, for which this action was instituted by appellant as assignor of Jerimiah Williams Co., for such claim.
It is respondent's contention that the transaction was a sale to appellant through his agent Oliver, while appellant takes the position that the wool was consigned through him as agent without the intervention of Oliver to Jerimiah Williams Co. Judgment on a verdict was entered for respondent and the appeal is from the order denying a new trial.
Appellant assigns as error the giving of the following portion of instruction No. 4:
"One of the material allegations of plaintiff's complaint is the allegation that Jerimiah Williams and Company was a co-partnership and this allegation must have been proven by a preponderance of the evidence, as well as all the other material allegations of said complaint."
Plaintiff, as assignee, had of necessity to show an assignor, and a cause of action in favor of such assignor assigned to plaintiff. The complaint alleged that "respondent was indebted to Jerimiah Williams Co., a co-partnership"; that there was such a party assignor was a material allegation and the burden of proving the same was on appellant. (30 Cyc. 402, 586.) Appellant himself recognized this and assumed such burden by offering evidence responsive to such issue. The instruction was, therefore, not incorrect.
Defendant claimed that the wool was purchased by one Oliver, acting as agent for appellant. Appellant objected to such evidence on the ground that there was no proof of such agency and that he himself negotiated the purchase. There was a sharp dispute as to whether the contract was made by respondent with appellant or with Oliver. The question of the authority of Oliver to make binding representation was, therefore, an essential link in respondent's case. While Jerimiah Williams
Co. accepted the wool, there is nothing but defendant's statement to show that they accepted it because of Oliver's activities. Since Jerimiah Williams Co. claimed no rights through Oliver in accepting the wool, as contended by *439
respondent, the facts are essentially different fromMcCornick v. Tolmie Bros.,
"The mere fact that the principal has received or enjoyed the benefits of the unauthorized act will not amount to a ratification if he did so in ignorance of the facts." (2 C. J. 495.)
"The fact that the principal received or enjoyed benefits of the unauthorized acts of an agent will not amount to a ratification if he did so in ignorance of the facts, nor will his retention of such benefits after knowledge of the facts amount to a ratification if at the time he acquired such knowledge, and without his fault, conditions are such that he cannot be placed in statu quo, or repudiate the entire transaction without loss." (Blackwell v. Kercheval,
The above rules would be equally applicable to the unauthorized acts of an agent or, as herein, the acts of an unauthorized agent.
Unless Oliver was the agent of Jerimiah Williams Co., the statements, which respondent claimed he made, would not be binding upon appellant. The admission, therefore, of these statements without showing agency was prejudicial because the jury might have been decisively and adversely affected by such statements. Since a new trial is to be granted, we will not discuss the evidence.
The judgment is reversed and a new trial ordered. Costs to appellant.
Wm. E. Lee, C.J., and Budge and T. Bailey Lee, JJ., concur. *440
