| Ark. | Nov 12, 1917
(after stating the facts). (1) Appellants assign as error the action of the eonrt in giving the following instruction: -
‘ ‘ If you find from the testimony in this case that the defendants knew, or by exercise of reasonable care should have known, that the salary account of R. E. Harrison was overdrawn, and, with such knowledge, continued to pay drafts drawn upon them for his salary; and if you further find that the plaintiff did not know that such account was. overdrawn and had no such information as would cause an ordinarily prudent person to believe that said account was overdrawn, then you will find for the plaintiff. ’ ’
They insist that under this instruction appellee when charged with negligence in the performance of his duties as general manager is allowed to interpose the defense that the defendants were guilty of contributory negligence in not keeping watch on their agent’s wrong doing. In other words, they claim that under this instruction a premium was placed on the wrong doing of the agent. We do not agree with counsel in this contention. Harrison was a first cousin of appellants and had charge of keeping the plantation’s accounts for them. The drafts which were drawn by appellee in Harrison’s favor for salary nearly all prior to the year 1914, showed on their face that they were for salary. These drafts were turned in to appellant for examination annually. If any examination had been made by appellants they would have seen at the end of each year that Harrison had overdrawn his account. By continuing to pay drafts for his salary when they knew that his salary accounts were overdrawn or were in possession of facts which would lead to such knowledge, they ratified the action of appellee. It was the duty of appellants to have examined the drafts showing overpayments of salary to Harrison and they will be deemed to have been in possession of the knowledge which such an examination would have imparted to them. The continued payment of drafts drawn by appellee in favor of Harrison for Ms salary after this, as above stated, constituted a ratification of appellee’s action. Hence the instruction was not erroneous.
(2) It is next insisted by counsel for appellants that the court erred in refusing to give the following instruction :
“No. 6. Even if the jury find from the evidence that the plaintiff did not know what the salary of E-. E. Harrison was, still this fact would be no answer to the defenant’s counter-claim, because unless the plaintiff had this information he should not have drawn the drafts. ’ ’
There was no error in refusing tMs instruction. It is true as stated by counsel for appellants that the instruction was in the language of the court on the former appeal in this case but it is not always proper to use the language of the court in an instruction. The court in using this language was considering the subject of a directed verdict for appellee. The court said in testing the, correctness of a directed verdict it must view the evidence in the light most favorable to appellants and on that account must assume that appellee exceeded his authority in drawing drafts in favor of Harrison when his salary was overpaid. The court further stated that it was no answer to this contention for appellee to say that he did not know the amount due; for unless he had this information he should not have drawn the drafts. The language was correct in the discussion of the point then under review by the court. It would be incorrect for the court to have given the instruction as asked, for the instruction did not take into consideration the question of ratification at all and this was the main defense to the counter-claim relied upon by appellee.
Counsel for appellants also assign as error the action of the court in refusing to give the following instruction :
‘ ‘ The jury are instructed that if they find from the testimony that the plaintiff was the agent for the defendants, and, as such agent, had charge of the business of managing the plantation of the defendants, and, if you further find from the evidence that the plaintiff was guilty of any fraud or unfaithfulness in the transaction of his agency, he can not recover in this action, and your verdict will be for the defendants.”
" The court modified, by adding to the end of the instruction, “for the amount of the counter-claim,” and this modification, it is insisted, is error. To sustain this contention they cite the opinion on a former appeal in which the court quoted from the case of Doss v. Long Prairie Levee District, 96 Ark. 451" date_filed="1910-11-14" court="Ark." case_name="Doss v. Long Prairie Levee District">96 Ark. 451, as follows:
“The rule is well settled, both by the text-writers and the adjudicated cases, that where the agent is guilty of fraud, dishonesty or unfaithfulness in the transaction of his agency, such conduct is* a bar to the recovery by him of wages or compensation.”
That case was only.cited as tending to show that the view of the court was that unliquidated damages flowing from a tort could be set up by way of a counterclaim. The facts in that case were essentially different from those in the present' case. There it was charged and evidence was adduced to prove that the chief engineer of a levee district had conspired with the construction company to defraud the levee district in the construction of the levee. It was held that where the agent is guilty of actual fraud towards his principal and causes his principal trouble and expense of litigation in order to secure his rights, the agent forfeits his' rights to compensation for his services as the penalty for his fraudulent conduct.
No such state of facts exists here. There is no fraud shown or attempted to be shown on the part of appellee. There is no proof tending,to show collusion between him and Harrison in drawing the drafts for Harrison’s salary. The most that can be said with reference to his eon-duct is that he negligently permitted Harrison to overdraw his salary. There is no testimony tending to show that his conduct in this respect was fraudulent. Therefore the rule anoúnced in the ease just cited does not apply and the court was right in modifying the instruction.
(3) Finally it is contended that the court erred in allowing appellee interest on yearly balances. Appellee was employed by the year to manage the plantation of appellants. His compensation was due at the end of the year. According to his testimony he refrained from collecting his salary during the last three years of his service in order to accommodate the appellants. It would have been better to have calculated the interest on these amounts up to date of the rendition of the judgment against appellants for a stated sum but the language of the judgment amounts to this and no prejudice resulted to appellants in this respect.
It follows that the judgment will be affirmed.