165 Ky. 319 | Ky. Ct. App. | 1915
Opinion op the Court by
Affirming.
The appellant, T. B. Short, brought this suit in the Fayette circuit court, against the appellee, Metz Company, to recover an automobile, or its value, $475.00, and damages for its detention. The facts in the case appear to be as follows: About September 1st, 1913, one Humphreys represented to appellant, that he was an agent of the Metz Company, which was a corporation organized under the laws of Massachusetts, and engaged at Waltham, Mass., 'in the manufacturing and sale of automobiles, which were known as the Metz. The appellant, at the timé, was the owner of a Reo 5-passenger automobile. Humphrey and appellant, after some dickering, with, each other, made a contract, by which it was agreed
On December 9th, 1913, appellant having waited, in vain, for Humphreys to deliver him the Metz car, which Humphreys had promised to him, wrote to the company, to the effect, that he desired the company “to have your agent here in the person of Jas. A. Humphreys, to release the Metz 22, which I ordered in September last;” that there was a draft in bank for $232.50 against the car, and the local agent was unable to release same; that he had paid him $175.00 in cash, and a Reo car at $300.00; that he had waited long enough and the company should see that he should get the car that he had paid for.
On December 13th, the appellee, company, wrote appellant to the effect, that it was surprised that the draft on the car recently shipped had not been taken up; that they were taking the matter up with Humphreys that day, and trusted that in that way “we will be able to straighten matters, to the satisfaction of all concerned. ’ ’ On the same day appellee wrote to Humphreys, saying to him, that it had been advised hy appellant, that there was a draft in the bank, at his end of the line, for a car he ordered from it in September, last, and that he must take up the draft, in order that the transportation company should not be holding it for the freights.
Humphreys immediately replied, saying to the company, that he had made a satisfactory arrangement about the car, and that the whole matter would be “taken care of at once.”
On the same day appellee wrote appellant and asked him why he did not go to the bank and pay the draft, and take delivery of the car himself.
On the same date appellant wrote appellee, that he was tired of the delay, and if matters were not brought ' to a close, he would have to refuse to receive the car.
On December 23rd, appellee telegraphed appellant, that it did not understand existing conditions; to write it fully; that it-could not help him until it knew the details and facts. On the same day, appellee wrote appellant, that its telegram should indicate1 to him that it was not familiar with the facts of his trouble, and before taking final action in the matter, that it desired fully to know all the existing conditions. On December 27th ap pellant wrote appellee a letter, in which he recited th& facts connected with his transaction with Humphreys, and in the letter referred to Humphreys, at all times, as the agent of appellee.
Appellant had filed the suit on the same day of his last letter to appellee, and this seems to have ended their communications with each other. The appellee entered its appearance and filed an answer, to which appellant replied, and the issues were thus made up. The appellant claims that Humphreys was the agent of appellee, and that it was bound by his contract; if he was not authorized to make the contract for appellee, that it, thereafter, ratified it. The appellee claims that Humphreys was not its agent'; that it knew nothing of his dealings with appellant, and was not bound by the contract of Humphreys and never ratified it. The proof showed that the contract made by appellee and Humphreys, on November 7th, 1913, continued until in the following March, when appellee gave notice and cancelled it. Proof was introduced by appellant showing that after the time of the transactions between appellant and Humphreys, several persons communicated with appellee, seeking to secure a contract to represent appellee as its agent, all of which appellee declined, writing them that the territory was under contract to Humphreys, and probably in one
The court instructed the jury, in substance, that if at the time of the making of the contract for the purchase of the car from Humphreys, that Humphreys was the authorized agent of appellee for the sale of its cars, and had authority as such agent to make such contract; or if at the making of such-contract Humphreys was not the agent of appellee, yet, if appellee subsequently ratified the contract, as having been made for and o.n its behalf, the jury should find for appellant. The converse of this instruction was given, and, also one defining the measure of damages in the event the jury should find for appellant.
The appellant offered three instructions in writing, which the court refused to give, and he excepted to the ruling of the court, but the transcript fails to show that the appellant objected to the instructions which were given, or excepted to the ruling of the court in overruling his objections. He moved the court to define the word “ratified” as used in the instructions, which was overruled, and he excepted thereto. The jury returned a verdict for appellee, and judgment was rendered accordingly. The appellant, now, seeks a reversal of the judgment against him for the following reasons:
First: The verdict was contrary to the weight of the evidence; the evidence established ratification of the bargain and sale to appellant.
Second: The court erred in refusing to give instruction Number 2, offered by appellant.
Third: The court erred in not defining the word “ratified.”
Fourth: The court erred in admitting testimony of motor car dealers, as to the use of the word “agent,” in connection with the business of the sale of automobiles.
With reference to the first ground relied upon for reversal there was no evidence which tended to show in any way, that on October 15th, when the contract relied upon is. alleged to have been entered into, that Humphreys was the agent of appellee. The evidence, in fact, dis
. The remaining question is: Does the evidence so clearly show that appellee ratified the contract between Humphreys and appellant, that the finding of the jury to the contrary was a finding against the weight of the evidence or a finding contrary to law 1 Ratification of a contract, as having reference to principal and agent, is the adoption and confirmation by the principal of a contract made by one, who at the time, assumed to act as his agent in making the contract, without authority to do so. 31 Cyc., 1245. To make the contract such as could have been ratified by the appellee, Humphreys, although not authorized, must have made the contract on behalf of the appellee. Appellant testified that Humphreys claimed at the time to have been making it on behalf of appellee, while Humphreys denied this, and testified that he was making the- contract on his own behalf. The receipt executed at the time is signed by Humphreys, agent of Metz Co., while the other portion of the contract put into writing at the same time and signed by Humphreys and appellant, appears to have been a transaction with Humphreys on his own behalf, and is so signed by him. The car was purchased by Humphreys, to whom, appellee charged the price of it upon its books, under a contract between Humphreys and appellee, that $150.00 was to be paid before the car was shipped, and the remainder of the price to be paid before he could come into possession of -it, and the $150.00 was received by appellee from Humphreys upon this contract and cred
It is insisted that because appellee received the-:$150.00, paid to it by Humphreys, and retained it, that it thereby ratified the contract between appellant and Humphreys, and is now estopped to deny the agency of Humphreys. It must be borne in mind, however, that .Humphreys was not the agent of appellee, and at the time it received this money it had no relations with Humphreys, other than vendor and purchaser of a car, .and knew nothing of appellant. Humphreys had confracted with appellee for the purchase of a car, and by the terms of the contract was to pay this sum, in cash, before the shipment of the car. When it was received, it was received as a credit upon the sum, which Humphreys -owed it for the car upon his own contract, and was never received or retained as a part of the benefits of the con'tract between Humphreys and appellant. Appellee had no contract with appellant, and Humphreys was not its agent, and it was not obliged to forego the benefits of its -contract with Humphreys, because of a contract between Humphreys and appellant, which appellee had nothing to ■do with and no knowledge of it, and did not in any way-.induce. The rule is stated in 31 Cyc., 1267, as follows:
“It follows as a general rule, if a principal with full 'knowledge of all the material facts takes and retains the •benefits of the unauthorized act of an agent, he thereby-ratifies such act, and with the benefits accepts the burdens resulting therefrom. The rule, of course, has no-.application where the principal receives no benefit from the agent’s act; nor does it apply if he is legally entitled to what he has received without assenting to the act of the agent, and he does not otherwise give his approval ■of such act. * *: * A principal, also, has a right to receive money from an agent in payment of a debt due from the latter, without inquiry as to the source from which it came; and if it is in good faith so received and applied by the principal, its subsequent retention after he learns that it was procured through -an unauthorized ■transaction entered into by the agent in his name will .not amount to a ratification of such transaction. ”
It is insisted that appellee did not promptly repudiate the act of Humphreys, in making the contract with appellant, when knowledge of the transaction came to it, and for that reason it is bound as having ratified the contract. This rule no doubt prevails, where the act is that of an authorized agent, who exceeds his authority, and the silence of the principal induces one to rely to his prejudice upon the ratification, arising from the silence of the principal. This rule, however, does not apply, where the act relied upon is one performed by one, who is not an agent, and the silence of the one in whose name the act is done, does not induce any one to do anything to his prejudice. Mere silence is only evidence of ratification, but not conclusive.
For the reasons above stated, the court was not in error in refusing to give instruction number 2, requested by appellant. The instructions given seem to fairly present the issues in the case, and we are not able to say that the jury did not determine the issues as they should have been and in accordance with the weight of the evidence.
The court should have sustained the objection of appellant to the evidence of the motor car dealer, who testified, that in the trade in such vehicles, the words agent and dealer were used interchangeably, but its admission could not have prejudiced the substantial rights of the appellant, as it could have had no effect upon the real issues in the case.
The failure of the court to define the word ‘ ‘ ratified, ’ ’ as used in the instructions, was not prejudicial. The meaning of the word ratify, as commonly used, is to approve and sanction; to make valid; to conform; to give sanction to; and it has the same meaning, as a matter of law, as applied .to the facts of this case, in connection with the other words used in the instruction, and it does
Upon the whole case, there appearing no error to the ' .substantial rights of appellant, the judgment is affirmed.