87 Mo. App. 290 | Mo. Ct. App. | 1901
This is a proceeding which was begun under the provisions ,of sections 4927 and 4928, Revised Statutes 1889, to determine whether or not the claimant, the .said S. A. Durand, was the owner of thirteen head of cattle which had been levied upon as the property of John B. Durand, the husband of the claimant, under an execution in favor of John B. Newberry and against the said John B. Durand. There was a trial in which the claimant had judgment and the execution plaintiff appealed.
The case, briefly stated, is this: The claimant was the owner of eleven head of cows, and resided with her husband on a farm, the title to a part of which was in her and a part in him, until 1897, when her husband concluded to quit farming and engage in merchandising. He rented the’ farm to one Brown for three years, and also entered into partnership with him under the firm name of Durand & Brown, to engage in farming and stock raising. The claimant’s husband, sold one-half interest in her cattle to Brown and turned the possession •of the same over to him. Hnder the partnership agreement, Brown was to take the farm, care for the cattle and hogs, and •“all the proceeds were to be divided equally.”
During the years 1897 and 1898, the partnership sold
In the book of account kept between each member and the partnership, the claimant’s husband wrote and the claimant signed the following: “I hereby ratify the accounts in this book on pages 234 and 235, 236 and 237 and 240 and 241, between J. B. Durand and J. M. Brown -and Durand and Brown, as far as any of my property may be concerned-up to this date.” In the account of Durand & Brown with J. B. Durand appears this entry: “1897. March 1. Or. by 11 head of cattle, $228.62.” This was the value of the cattle as agreed between the partners, when the same was turned over to Brown. In the settlement between the partners, Brown gave his note to the claimant for the half interest-in the cattle which the claimant’s husband had sold him when the partnership was formed.
The claimant was permitted, over the objections of the plaintiff, to testify to the facts and circumstances surrounding the signing of the writing by her for the purpose of show
Upon the face of the writing here, it is doubtful what acts of her husband, if any, or of the partnership, the claimant intended to ratify, or whether the ratification was intended to extend to the sale by her husband of her half interest in the cattle to Brown, or the sale by her husband to the partnership, if he did make such sale, of her entire interest in the cattle. It would be quite difficult, indeed, to understand from the
Nor do we think the instruction given by the court on its own motion for plaintiff, which left it to the jury to ascertain whether the claimant by said writing meant to ratify a sale by her husband to the partnership of all her cattle or 'to only one-half interest therein to Brown, one of the partners, was erroneous in expression. Where an instrument is ambiguous in any of its terms and the ambiguity can not be solved by reference to the other parts of it, and the surrounding circumstances are controverted, as here, by the evidence,, the court should charge the jury hypothetically as to the interpretation thereof. The determination by the jury of the question the one way or the other, would determine the intention of the parties, and hence the interpretation of the contract. Deutman v. Kilpatrick, 46 Mo. App. 624; Michael v. Ins. Co., 17 Mo. App. 23; Gaslight Co. v. St. Louis, 46 Mo. 121; Norton v. Bohart, 105 Mo. 615.
The plaintiff objects that the second instruction given by the court for the claimant, which left it to the jury to determine whether or not the claimant’s husband was her agent in handling her cattle, and whether or not as her agent he sold her cattle to the partnership, and whether or not she ratified such sale, was erroneous in enunciation, for the reason that the claim
Nor do we think the instruction just referred to is, as plaintiff contends, subject to the objection that the hypothesis thereof is not founded on any substantial evidence, direct or inferential. The uncontradicted evidence shows that the claimant’s husband sold to Brown a half interest in her cattle, and the fact that he had authority to make such sale may be inferred from her conduct. At no time after such sale did she pretend that the sale was unauthorized, or that Brown had acquired no title thereby, but on the contrary she in every way recognized the validity of such sale and consequently the authority of her husband to make it.
The second paragraph just referred to further told the jury that if by signing'said writing the claimant intended only to ratify a sale to Brown of a half interest in the cattle, that ¡then such ratification did not have the effect to confirm an absolute title in the partnership. It is not perceived that this instruction, when viewed in its entirety, is in any respect contradictory or misleading.
In hereinbefore noticing the rulings of the court in respect to the evidence, we omitted .to notice the rejection of plaintiff’s offer of entries made in the book containing part
An examination of the entire record has not convinced us that there is no substantial evidence to support the verdict. The case was fairly submitted to the jury under the evidence and instructions -and the conclusion reached by it is conclusive on us. The judgment will be affirmed.