64 Ark. 217 | Ark. | 1897
(after stating the facts.) This action was brought by Hickman against Martin upon a contract alleged to have been made by Clary as agent of Martin. Hickman contends that Clary, acting as agent for Martin, as part of the consideration for the release by Hickman to Martin of certain' interests in land to. which Martin held the legal title, agreed that Martin would assume and pay for Hickman a note for $147 due from Hickman to O’Neill. But Clary was only a special agent, and there is nothing to show that he had authority to bind Martin by such promise. On the contrary, the evidence of both Martin and Clary is that Clary had authority only to offer Hickman $75 and a release of Martin’s claim for $145 against Hickman for Hickman’s interest in the land, but no authority to promise for Martin that he would assume or pay any other sum. In order therefore to hold Martin liable in this case, it was incumbent on Hickman to establish two propositions: First, that Clary, acting as agent of Martin, agreed, as part of the consideration to be paid Hickman for his interest in the property, that Martin would assume and pay the O’Neill note; second, that afterwards Martin ratified this act of Clary. On the first proposition, the testimony of Hickman and Clary, the only two witnesses on .that point, conflicted, and the finding of the jury must be taken on appeal as establishing that proposition in favor of Hickman.
On the second proposition the finding of the jury was also in favor of Hickman, but we are not able to discover in the record any evidence to support such finding. It is well settled that ratification of the unauthorized acts of one who assumes to be an agent, in order to render them binding on the principal, must have been made with the knowledge of all material facts, and that ignorance of such facts will render an alleged ratification ineffectual and invalid. Lyons v. Tams, 11 Ark. 189; Combs v. Scott, 12 Allen (Mass.), 493; 1 Am. & Eng. Enc. Law (2 Ed.), 1189, and cases cited.
A principal will not be considered as having ratified an unauthorized act of his agent merely because he receives property and avails himself of the advantages derived from such act, when he did not learn that such agent had exceeded his authority until after he had sold the property, and after the circumstances were such as to put it beyond his power to return or restore the property. Bryant v. Moore, 26 Maine, 84; 45 Am. Dec. 96; Thacher v. Pray, 113 Mass. 291; Brown v. Wright, 58 Ark. 20. In this case the evidence is uncontradieted, not only that Martin had never authorized Clary to agree for him that he would assume and pay the $147 sued for, but also that he had no notice of such a claim on the part of Hickman until long after he had sold the property received from Hickman.
The instructions given by the court told the jury, in effect, that if Martin retained or failed to restore the property after being informed of the act of his agent, such conduct on his part would amount to a ratification. It seems to us that, under the facts of this ease, this .charge was clearly misleading, Martin could not restore the property, for he had already sold it before learning of the unauthorized act of his agent Clary. His failure to restore or return the property, under such circumstances, cannot be treated as a ratification, so as to make him liable for the unauthorized promise of Clary. The evidence on this point was not sufficient to sustain the verdict. Bryant v. Moore, 26 Maine, 84; 45 Am. Dec. 96; White v. Langdon, 30 Vt. 599.
If Martin refuses to carry out the stipulations of the contract made by Hickman with Clary, Hickman can rescind such contract, and enforce what rights he may have against Martin under the original contract for the purchase of the land made between O'Neill, Martin and himself, but he cannot hold Martin liable for the promise of Clary, which he neither authorized or ratified.
For the error indicated, the judgment is reversed, and a new trial ordered.
