144 Ky. 518 | Ky. Ct. App. | 1911
Opinion op the Court by
— Affirming;
Appellee, Price & Teeple Piano Co., of Chicago, instituted this claim and delivery suit against Kate Pemberton on January 26th, 1910, for the recovery of a) piano valued at $250.00. It succeeded, and from a judgment awarding it possession' of the piano, the defendant prosecutes this appeal.
W. P. Hopkins and W. E. Lafoon, doing business as¡ partners under the name of the “Madisonville Musie| Company” (hereinafter called the Music Company for brevity) bad been, for several years before the filing of the petition, in the- business of selling pianos and musical instruments of the Price & Teeple Piano Co., nnderi a written contract which retained the ownership of the goods in the Piano Company, and gave the Music Company a sel line; agent’s commission only. All pianos, organs and other property furnished to the Music Company were held on consignment until sold and such sale was approved and accepted hy the Piano Company; All notes, contracts and leases taken in the sale of goods, were to be a lien upon the instruments- siold, and made] payable to the Piano Company, and subject to its approval and acceptance. The Music Company handled!
The case having been tried by the judge without) the intervention of a jury, a judgment was entered] granting the Piano Company the possession of the piano upon the ground that the Music Company could not use its principal's property to pay its own debt and that the appellant in accepting the property in payment of such diebt, acquired no title thereto.
The circuit judge rested his decision upon the authority of Baldwin v. Tucker, 112 Ky., 282, and in doing so we think he ruled correctly. In that case this court enforced a contract substantially like the one at bar, after a full consideration of the questions involved. The opinion thoroughly discusses the question, and it is not necessary to repeat the discussion here. The gist of it is contained in the following language, found on page 286.
“Sparks seems to halve been made the agent, with limited powers to transact all the business in the matter of selling musical instruments ini the city of Harrodsburg and such other territory as might be agreed upon between the parties. Without deciding, we will as
And on the same page the opinion quotes the following from section 354 of Machem on Agency in support of its conclusion:
“An agent intrusted with goods to sell for his principal has no right to sell or deliver them in payment of his own debt, or to pledge them as security for his own debt, and persons dealing with such an agent are bound to take notice of this limitation of his authority. A creditor therefore, who receives the goods under such ani agreement, as well as his vendee, though acting in good faith, and in ignorance that the goods did not belong toi the agent, acquires no title thereto against the principal. ”
In the case at bar the agent, the Madisonville Music! Company, undertook to pay its own debt of $160.00 by delivering to appellant a piano belonging to the appellee, the list or wholesale price of which wasi $250.00. Appellant stoutly contends that because this rental was; owing by the agent for a house in which the pianos of appellee were stored, that the debt became the debt of the principal as one necessarily incurred in order to carry out the agency. This is the familiar contention usually made in all cases of this character; and not only substantially assumes the question in issue, but was disposed of adversely to appellant’s contention in Baldwin v. Tucker, supra.
It is admitted that upon learning that appellant had
Huff cut on Agency (2nd Ed.) section 32, says:
“Two elements must concur before the basis for ratification can be said to be laid: (1) The principal must be an existing person capable of being ascertained, and (2) The contract must have been made in the name of and in behalf of such existing and ascertainable; person.” i
And in amplifying the second point, Huff cut says:
“The contract must be professedly made in behalf, of such existing principal. It seems to be the prevailing American rule that in order that a person may ratify an act of another, the act must have been done professedly in the name of and on behalf of, the one so ratifying, in other words, that where the act is done in the name of the actor, without naming or disclosing any other person, there can be no ratification, even though the actor was in fact acting in behalf of an undisclosed) principal.” As was well said by Lord Robertson in Keighly v. Durant, 1901, A. C. 259, “the whole hypothesis of ratification is, that the ultimate ratifier is already in appearance the contractor, and that by ratifying he holds as done for him what álready bore, purported or professed to be done for him. But there is no room for ratification (unless the whole world may ratify it) until the credit of another than the agent has been pledged to the third party.”
The doctrine is well stated in Western Publishing House v. Rock, 84 Iowa, 101, as follows:
“The plaintiff, while inferentially conceding that the) contract was made without authority, insists that it), was afterwards ratified. But as the contract did not purport to bind the defendant, it could not ratify it. There is no such thing as the.ratification of a contract) by an obligor made by another, when it does not purport to bind him, but binds the other. In -such a case the obligor cannot become bound by a ratification. He can*524 .only become bound by a new contract assuming or adopting the obligation of the prior one.”
Tbe" general doctrine is perhaps nowhere better stated than in the following language of Earl, J., in Hamlin v. Sears, 82 N. Y., 327:
“The general doctrine that one may, by affirmative acts, and even by silence, ratify the acts of another who. has assumed to act as his agent is not disputed. It isl illustrated by many c'ases to be found in the books, and set forth by all the text writers upon the law of agency. (Story on Agency, section 251a; Greenl. on Ev,, secs. 66, 67; 2 Kent’s Com., 616; Thompson v. Craig, 16 Abb. (N. S.) 29; Wilson v. Tumman, 6 Mann, & Gr., 236; Watson v. Swan, 11 C. B. (N. S.), 756. But the doctrine properly applies only to cases where one has assumed to act as agent for another, and then a subsequent ratification is equivalent to an original authority. Ome may wrongfully take the property of another not assuming to act as agent, and sell it in his ownJ name and. on his own account, and in such case there isj no question of agency, and there is nothing to ratify. The owner may subsequently confirm the sale, but this: he cannot do by a simple ratification. His confirmation must rest upon some consideration upholding the confirmation, or upon an estoppel. (Workman v. Wright, 36 Ohio St., 405).” See also Grund v. VanVleek, 691 Ill., 487; Herd v. Bank of Buffalo, 66 Mo. App., 643; Pittsburg R. R. Co. v. Gazzam, 32 Pa. St., 340; Wycoff v. Davis, 127 Iowa, 399; Garvey v. Jarvis, 46 N. Y., 310.
In delivering the piano to appellant the Music Company did not pretend to be acting for the appellee; on the contrary, it acted solely for itself. There having been no attempt on the part of the Music Company to execute an agency, there was nothing to ratify.
In Huffcut on Agency, sec. 51, it is said:
*525 “Estoppels may arise (1) from a record, (2) from! a deed, (3) from a contract, or (4) from a misrepresentation, which misrepresentation may he either by words or by conduct. Estoppels arising from contract or from misrepresentation are usually termed estoppels in pais, a phrase frequently used but conveying in itself no very definite notion. In the law of agency we are! mainly concerned with estoppels arising from misrepresentations. ’ ’
No misrepresentation is claimed; on the contrary,, ■appellee has merely prosecuted what it deemed to be its rights under the law 'and "the facts. Appellant took noj» step upon either a representation or a misrepresentation made by the appellee, and has not been prejudiced]' by any act of appellee.
Excelsior Coal Mining Company v. Virginia I. & C. Co., 23 Ky. L. R., 1834; Hilton v. Colvin, 25 Ky. L. R., 1808; Peyton v. Woolen Mills Co., 28 Ky. L. R. 1303.
We are of the opinion that the judgment of the circuit court was right, and it is affirmed.