92 Neb. 539 | Neb. | 1912
This is an action of replevin brought in justice court in
The property replevied was a sewing machine sold by plaintiff through its agent, Poole, to the defendants. The evidence shows that the price fixed upon the machine was $60; that plaintiff took as part payment an old machine, and, according to the testimony of defendants, was to receive $35 in addition, of which $5 in cash was paid at the time. Poole testified that defendants were to pay $39, and paid $5 in cash at the time. What is termed a “single payment note” was signed by defendants and delivered. to Poole. This note provided for the payment of the difference between the two machines one year after date, and also provided that the machine, for the purchase money of which the note was given, should remain the property of the company until full payment of the purchase money, with interest and costs. Defendants testified that when they signed the note it was drawn for the sum of $30. When the note Avas about to mature, it was sent to a bank for collection.. Defendants were notified of that fact, and were requested to make payment at the bank, the notice stating that the note was for $34. The defendant John L. Barger Avent to the bank and asked to see the note, stating that there must be something wrong about it. When the note Avas shown to him, he at once stated that the amount of the note had been raised from $30 to $34, and refused to pay it, stating that he Avas Avilling to pay the $30, but would not pay any more. The bank reported to plaintiff what had been said, and received in return a letter from plaintiff, in which it is said: “We accepted this note with a balance of $34 and had no thought but what it was correct. If Mr. and Mrs. Barger say they were to pay only a $30 balance you may collect same and we will settle with our Mr. Poole. Kindly make arrangements with Mr. Barger to let us have the note to help us make our settlement.” When notified of the statement of plaintiff, defendant refused to pay the $30, and
Upon the trial defendants both testified unequivocally that at the time they signed the note it was drawn for $30. The note shows upon its face that the word “four” must have been written into the note- after the word “thirty,” after the note had been drawn. An examination of the original note, which is before us, shows that as originally drawn it read “thirty no-100 dollars.” Subsequently there was writen in between the word “thirty” and the “no-100 dollars” the word “four.” That this was written in after-wards is evident from the manner in which the last letter of the word “four” is croAvded up against the line between the word “no” and the figures “100.” Plaintiff’s agent admits that he Avrote the word “four” in after the other part was written, and explains his act in doing so by testifying that the defendants were to pay $9 in cash and give a note for $30, and that after he had the body of the note written, but before writing the figures $34 in the
In the light of the admissions of counsel, which are eminently proper in the face of the record, his contention must fail. It is argued, and authorities cited in support of the argument, that where an agent has no authority, either express or implied, to make an alteration of the character under consideration, it is simply a spoliation by a stranger to the contract, and does not impair the validity as it originally stood. The trouble with plaintiff’s contention and with his.authorities is that they do not fit the facts established at the trial. We think the rule of law applicable here is that if the alteration is made by an agent, while in the transaction of the principal’s business and within the scope of his authority, then the act of the agent is the act of the principal. The cases supporting this rule are numerous and hardly call for citation. Among them may be noted authorities cited in defendants’ brief, among which are Kingan & Co., Limited, v. Silvers, 13
. But, even if this were not so, there is another rule of law from which we are unable to see any escape by plaintiff. The evidence shows that, after plaintiff had due notice of the alteration of the note, it failed to disaffirm the unathorized act of its agent, but, on the contrary, affirmed iris action by taking the machine in a replevin action, under the authority given by the altered note. It being established by the verdict of the jury that the note had been altered, it was void in its entirety, and plaintiff obtained no rights under -it. Without that document to aid it, plaintiff had no authority to take the sewing machine, for, if no valid contract, in the terms and of the land relied upon, was ever signed by defendants, then the transaction between plaintiff and defendants was simply an ordinary sale of a seAving machine on one year’s time. By such a sale plaintiff would part with its title to the machine, and its only legal remedy, in the event of a failure by defendants to pay the balance due, would be by an ordinary action at law and a collection upon execution. “A principal must disaffirm the unauthorized act of his agent within a reasonable time after such act comes to his knowledge, or he will be bound thereby.” Farmers & Merchants Bank v. Farmers & Merchants Nat. Bank, 49 Neb. 379. “The acceptance or retention by the principal, after knowledge of the facts, of the fruits of an unauthorized act of an agent is a ratification of the agent’s act, and it relates back to the time of the act and makes it as if the agent had been empowered to perform it at its date, and the principal is bound in all respects as if he himself had been the actor.” Johnston v. Milwaukee &
It is contended that the court erred in giving instruction No. 2. In that instruction the jury were told that the burden was upon the plaintiff to prove every material allegation contained in its petition, and, if the jury found the evidence bearing upon any material allegation was evenly balanced, or that it preponderated in favor of defendants, plaintiff could not recover. The instruction is not open to the construction placed upon it by plaintiff. It is next contended that the court erred in giving instruction No. 6. This instruction should be considered in connection with No. 5, and when so considered it is free from error. It is further urged that the court erred in not giving instruction No. 1, requested by plaintiff, as follows: “You are instructed that if you find from the evidence, exclusive of the written instrument in question, that at the time of the commencement of this action the title and right of possession of the property replevied was in the plaintiff, then your verdict should be for the plaintiff, regardless of any alleged alteration in the written contract.” This instruction was clearly bad, and was properly refused. No right of possession of the property replevied had been shown, “exclusive of the written instrument in question.”
The verdict of the jury being conclusive as to the fact that the note was materially altered after its execution by the defendants, and. .plaintiff having ratified the unau
Affirmed.