96 Wash. 146 | Wash. | 1917
— This action wás brought by the respondents to recover a Decker Brothers piano or its value. A judgment resulted in favor of the respondents for the value of the piano. The defendant has appealed.
The facts are, briefly, as follows: The respondents are husband and wife. Mrs. McAlpine had stated to her husband that she desired to exchange a Decker piano which they owned for a player piano. Her husband informed her that he did not desire to dispose of the Decker piano, and that he was not able to purchase a player piano; that, as soon as he was able, they might probably purchase a player piano. Mrs. McAlpine, when her husband was away from the city, went into a store of which A. A. Campbell was manager for the appellant, and told Mr. Campbell that she wanted to look
Upon Mr. McAlpine’s return to his home some three days after, he was informed by Mrs. McAlpine that the player piano had been left in their home for one year for approval, with no obligation to purchase, and that the Decker piano' had been taken away to be stored pending their decision. She did not inform her husband of the execution of the bills of sale. Thereafter, on or about June 20, 1915, the appellant made a demand upon Mrs. McAlpine for payments due and in arrears under the terms of the conditional sale contract. She then informed her husband that the appellant was asserting that the player piano had been purchased by her and the Decker piano sold to the appellant. Upon being informed of these facts, Mr. McAlpine told her that she must rescind the contract and return the player piano. Thereafter, on November 26th, Mrs. McAlpine served a formal written demand upon the appellant to take possession of the player piano and to return the Decker piano. On November 28, 1915, the appellant removed the player piano from respond
We are of the opinion that the trial court was right in this respect. The statute (Rem. Code, § 5917) provides:
“The husband shall have the management and control of community personal property, with a like power of disposition as he has of his separate personal property, except he shall not devise by will more than one-half thereof.”
It is conceded that the Decker Brothers piano was the community property of the respondents. It is not disputed that Mrs. McAlpine was told by her husband not to dispose of the piano. She told the agent, Mr. Campbell, that fact. Nevertheless, he took the Decker piano from her and after-wards sold it for $125, without her consent.
It is plain from the statute above quoted that Mrs. McAlpine was not authorized to dispose of the piano, and that her contract was void. In the case of Marston v. Rue, 92 Wash. 129, 159 Pac. 111, we held that the wife, in that case, was authorized to sell an automobile which was owned by the community, but that was a case where” the husband had purchased an automobile and had left his wife and had gone to Alaska, and where the automobile was classed as perishable property, and we held, under the facts of that case, that she was authorized to sell it and convey good title. That was an exceptional case, and this court said, in closing the opinion:
“We do not by this opinion enlarge the rights of a wife so as to give to such as buy from her any presumption of good title. On the contrary, these must buy at their peril from one who can deliver title only in an unusual situation. They can prevail only after justifying the exception beyond reasonable debate.”
The appellant seeks to justify this appeal upon the ground of ratification and estoppel, but we think there was neither ratification nor estoppel, because Mr. McAlpine was not informed of the facts. He was told, upon discovering that a new piano had been placed in the house, that it was placed there on approval, without any obligation to purchase, and that the Decker piano had been taken away to be stored pending their decision. If he had been told that there was a bargain of sale and that bills of sale had been executed, and no action on his part had been taken after such information, then it might be reasonably argued that he was estopped after making no objections thereto. Quoting from O’Shea v. Rice, 49 Neb. 893, 69 N. W. 308, it is said, in Murphy v. Clarkson, 25 Wash. 585, 66 Pac. 51:
“ ‘It is elementary law that knowledge by the principal of the material facts is an essential element of an effective ratification of the unauthorized acts of his agent.’ ”
Mr. McAlpine was not told the material facts until months afterwards. When he was told that the appellant claimed a sale and exchange of the pianos, he immediately notified his wife that she must rescind the sale, and thereafter she sent notice to the appellant. The appellant came and took away the player piano and refused to redeliver the respondents’ piano, which had been taken and sold.
We are satisfied, under the statute and the facts stated, that Mrs. McAlpine was without authority to enter into the contract of sale, and that there was no ratification by her
It is unnecessary to discuss other questions presented in the briefs.
Ellis, C. J., Fullerton, Parker, and Holcomb, JJ., concur.