13 Colo. 69 | Colo. | 1889
There are numerous errors assigned. The first is that the court erred in permitting plaintiffs to
Many of the supposed errors in admitting and rejecting testimony were disposed of by the court in the instruction given to the jury, as they arose upon that branch of the case. There were trivial, technical, but unimportant errors upon the trial, not such as could seriously affect or prejudice defendant, as they were on collateral matters, and not material in determining the question of ratification, and we do not find it necessary to further discuss them.
After the court gave the instruction withdrawing from the jury all testimony in regard to the authority of H. L. King to execute the notes on behalf of defendant, and placed the right of recovery entirely upon the ratification by the defendant, no act of the defendant, or evidence of ratification, could validate the unauthorized act of the
The questions to be submitted and determined by the jury were: (1) As to the knowledge of the defendant in regard to the transaction as made and entered into on his behalf by his brother, claiming to act as his agent. Whether all the facts necessary to a full understanding came to his knowledge at any time after his return on June 1st, and prior to September 10th. Or, if not fully informed in regard to all the facts, bad he not - sufficient information, and were not the circumstances such as to afford him an opportunity and require him to obtain the necessary information?
The circumstances must have been fully understood by the party before any inference can be drawn from his silence, and they must have been such as not only afforded an opportunity to act or speak, but such as would naturally call for some action from men similarly situated. 1 Greenl. Ev. § 197; Mining Co. v. Bank, 1 Colo. 531; Story, Ag. 256; Corser v. Paul, 41 N. H. 24.
(2) Did the defendant, as soon as he had knowledge of the facts of the purchase, within a reasonable time ¿disavow the transaction, and place the parties respectively in the same situation they were previous to the purchase? '“If a party does not disavow the acts of his agent as soon as he can after they come to his knowl
(3) Did defendant, when informed of the facts, by failing to disavow and rescind the contract, and by his acts, silence and apparent acquiescence, cause the plaintiffs to change their relation to the property, cause them a loss, prevent the collection of the notes from H. L. King, and estop him (defendant) from denying his liability to pay the consideration of the purchase?
“There is a class of admissions which may be either express or implied from silence or acquiescence which are conclusive. Such are admissions which have been acted upon, or those which have been made to influence the conduct of others, or to derive some advantage to the party, and which, therefore, cannot be denied -without a breach of good faith.” Corser v. Paul, supra. “ Where the delay on the part of the principal to disavow the agency will result in loss, and where the transaction may turn out a profit or loss according to circumstances, the principal must disavow the act of the agent within a reasonable time after notice.” Mining Co. v. Bank, supra; Culver v. Ashley, 1 Amer. Lead. Cas. 719, and note; Hortons v. Townes, supra. “ If the • principal accept, receive and hold the proceeds or beneficial results of such a contract, he will be estopped from denying an original authority or a ratification.” 1 Pars. Cont. 50; Johnson v. Smith, 21 Conn. 627.
In order to ascertain whether these propositions were properly submitted to the jury an examination of the instructions becomes necessary, and also of the testimony to a certain extent. There is testimony on the part of defendant to show that a.t the time of the transaction it was agreed that the plaintiffs were to retain the possession of the property and the notes until after the return of defendant, and that the consummation should depend
On or about the 18th of Juné, defendant, Smiley and his family, and two or three male employees and one female employee 'of defendant, entered into the actual possession and occupancy of the property, and remained in such actual possession at least until some time in October. The testimony in regard to the possession of the property after entry of defendant and Smiley was contradictory. It was, attempted on the part of defendant
After a very careful examination of all the instructions given by the court on its own motion, we are of the opinion that they fully embrace and submit to the consideration of the jury all the questions necessary to be determined on the question of ratification.
The twelfth instruction, as asked by the plaintiffs, was a clear, concise and correct statement of the law, and the court would have been warranted in giving it without the modification. As modified, if erroneous, it was more favorable to the defendant than was warranted by the law and the facts. Of this the defendant cannot complain.
We do not think the court erred in modifying the fifteenth instruction asked by deféndant, and, even as modified, it is a question whether it should have been given. It was too narrow and limited in its scope, and might have been construed as requiring the jury to attach
The thirteenth instruction given for plaintiffs was warranted by the evidence. The conduct of defendant was, to say the least, questionable and misleading. On the 2d of September, when 'called upon for money, he did not disavow the note; did not refuse .to pay it; did not deny his liability. ’ He referred them to H. L.'King. On the 6th of September he was again called upon. He did not deny his liability, and, according to testimony of plaintiffs, said he could not pay until he had sold beef cattle, and, when asked in regard to plaintiffs’ taking the notes to Montrose and getting money from the bank, wished them not to do so until H. L. King returned from Montrose. On the 10th of September, when again, called upon, he for the first time disavowed the notes. During the time from some time prior to the 2d of September, he, according to his own.testimony, was buying out and getting possession of all the property of H. L. King, and on the 6th, when he was asking plaintiffs to wait his brother’s return, he was on his way to Montrose to close the purchase with and make final payment to him, and knew that he was leaving the country. There was also testimony that he had .said he had run H. L. King off. It is evident that defendant was of the opinion that he could not be held liable for the purchase price of the property which he was possessing and enjoying, except through the notes, anxl thát he conspired with his brother to render the collection impossible as against him. Such conduct by one who had long enjoyed, and while enjoying, all the benefits of the transaction could not very favorably appeal to either the court ór jury.
We do not think the court.erred in its instructions to the jury on the question of ratification, and think the jury were warranted in finding from the evidence that the defendant had ratified the purchase, and was liable for the purchase price.
We do not think the irregularity complained of in the sixteenth assignment was of very grave importance, as explained by the court over his* signature. The defendant’s counsel commented upon the absence of the testimony of Dr. Enslow, “and challenged plaintiffs’ counsel to state why it was not there.” In reply the challenge was accepted, to which defendant objected. To what extent counsel should be allowed to travel out of the record in reply to his adversary was a matter somewhat in the discretion of the court, and we cannot say from the record that the discretion was abused.
It is assigned for error that the court permitted the jury to take the promissory notes and the pleadings with them when they retired. There is no record of an objection or an exception. This court cannot review alleged irregularities that were apparently waived or consented to. It follows from what has been said that the court did not err in refusing a new trial. The judgment should be affirmed.
Richmond and Pattison, CO., concur.
For the reasons stated in the foregoing opinion the judgment is affirmed.
Affirmed.