223 P. 183 | Okla. | 1924
This suit was instituted by F.B. Conrad against Thad Shipman and wife, Nora Shipman, in the district court of Love county, Okla., to recover the sum of $1,701.35, the price of a lumber bill sold and delivered to Thad Shipman by Carey, Lombard, Young Company of Marietta, Okla., for the purpose of building a home on the lands of his wife, Nora Shipman, who was an Indian citizen, and only 16 years of age at the time the sale was made.
The material facts as disclosed by the record are that Shipman desired to build upon the allotment of his wife, Nora Shipman, for the purpose of making it their home, and went to the lumber company above named to purchase a bill of lumber. Mr. Pierce, manager of the company, made an estimate of the bill, but refused to sell same to Shipman without security, who thereafter induced Conrad to go with him to Pierce, manager for the company, and after some negotiation the company agreed to deliver the lumber, having been assured by Conrad, the appellee herein, that he would see that the bill was paid on delivery of the lumber or within 30 days, being practically a cash transactions. The bill of lumber was charged to Thad Shipman and his wife, Nora Shipman, and when said bill became due, the Shipmans were unable to meet same, whereupon Conrad paid the bill, which was duly assigned to him by the lumber company, and thereafter this suit was instituted, based on the assignment.
Thad Shipman makes no defense to the cause of action and default judgment was rendered against him. Nora Shipman answered, and alleges that she was not a party to the original contract, that she authorized no one to act for her, and that she was a minor at the time, and therefore not bound. *217
The cause was tried to a jury and verdict rendered for the plaintiff in the sum, of $1,701.35, the amount of the bill of lumber, together with interest. The appellant assigns numerous errors, but chiefly relies on the fact that she was a minor at the time this contract was entered into for her benefit, and that she has never ratified same, and contends that she was not primarily liable, and therefore had nothing to ratify, and in support of this contention cites the case of Capps et al. v. Henseley,
The question of ratification or adoption one of fact, and when submitted to a jury on proper instruction, their verdict, if based on reasonable evidence tending to support the same, should not be disturbed on appeal.
The appellant also contends that the paying of the bill by Conrad, the appellee, was voluntary, that he was not legally liable, and for that reason there is no liability on her part, and cites the case of Mackey et al. v. Nickoll,
"Where there is a conflict in the evidence, and the issues determined by a jury under proper instructions, and approved by the trial court, this court will not disturb the verdict on the weight of the evidence."
And the court further said in that case:
"A transaction in parol, whereby M. requests of N. to extend credit to Q. and N. refuses but agrees to extend credit to M., and merchandise is delivered to Q. upon said request and agreement of M., same is an original undertaking as to M. and not within the second subdivision of the statute of frauds."
The facts are that the appellant knew of the transaction, knew that the lumber was being hauled by her husband and placed on her land preparatory to building a home, and evidently knew that her husband had no means with which to pay for same, and that he did not pay for same, and immediately after the building was completed, moved into it and occupied same as a home until a short time prior to the trial of this case, when they moved to Marietta and rented a home. The appellant on the trial expressed a desire and willingness to pay the bill whenever she becomes able to do so and has at no time since becoming of age or prior thereto repudiated the transaction either by act, word, or deed; she accepted the benefits derived from the contract in full. Appellee cites the case of Perkins et al. v. Middleton et al.,
"This transaction being only voidable, could be ratified by the plaintiff, Eva Middleton, upon her reaching her majority, and it was not necessary, in order to constitute a ratification, that she should approve the transaction or adopt it as though she had entered into it in the first place herself."
"A ward may on reaching majority elect either to ratify and enforce the unauthorized acts of his guardian or to disaffirm them. He must, however, ratify them in toto or relinquish all rights under them. He cannot elect to satisfy the contract in part and repudiate it in part." (21 Cyc. 106.)
We think the acts and conduct of appellant were sufficient to justify the verdict of the jury and to establish an adoption of the contract, or, as expressed by the trial court, "a ratification by adoption." Appellant complains of the instruction of the court, but from an examination of the instructions in their entirety, we find same to be a fair presentation of the law applicable to the facts in the case. We therefore recommend that the judgment be affirmed.
By the Court: It is so ordered. *218
