30 Nev. 402 | Nev. | 1908
Lead Opinion
(after stating tbe facts):
Under tbe circumstances related- can tbe defendant Jobn Barrett be held to have authorized, or to have ratified, or to be bound by, tbe agreement made by bis wife? As tbe statute gives bim tbe absolute control and management of tbe community property, any agreement sbe made regarding it, altbougb binding upon ber because sbe was free to contract for berself, would not impose any legal liability upon bim or upon tbe property, unless be bad authorized tbe agreement, or bad in some way sanctioned it after its execution. Tbe fact that she was attending to tbe rooms and conducting a lodging-house business with his apparent approval would not confer any power upon ber to sell the furniture or rent tbe premises; and, if sbe possessed any authority to bind bim, it was because be informed ber that" sbe could sell tbe business and rent the building.”
No price or conditions were mentioned, and we need not determine whether this meant that she could sell for any amount and rent on terms which be would approve, or whether this authorized ber to sell for any price or rent for any sum or period sbe desired, or delegate tbe power of selling to another with a large commission of five hundred dollars, more or less; for, if it did, tbe presentation of tbe agreement to Jobn Barrett first, and tbe objections which be made to executing it, when be stated that it might be held to include a sale of tbe real estate, that plaintiff could lease it to objectionable characters, that tbe price was too low, and that be would not sign it, was ample notice to tbe plaintiff through bis acting representative that Jobn Barrett bad revoked any power given to bis wife to execute such an agreement, if she bad been previously authorized. Tbe writing did not purport to be signed by ber for bim as bis agent, nor to be made by bim, nor to be binding upon him. Upon its face it indicates that it is an agreement with plaintiff binding upon ber alone. If it bad purported-to obligate bim, and to be signed by ber as bis agent, still tbe refusal of Jobn Barrett to execute tbe instrument himself would have been notice to tbe plaintiff that be revoked any authority in
The mere acting of one under the claim or belief that he is an agent does not prove that he is clothed with authority. In that it is sought to hold the owner for the acts of a purported agent, this case may be compared with Schlitz Brewing Company v. Grimmon, 28 Nev. 235, and Marino v. Williams, 30 Nev. 360. If it be assumed that the husband had previously authorized the wife to make any agreement for the sale of the personal property and the renting of the premises, including the one which she signed, on no legal principle can it be held that he could not abrogate such authority or that he did not revoke it by his conduct as stated, or that he could be held liable on this agreement which he had refused to execute. Nor is there anything indicating that John Barrett ratified the agreement made by his wife, or any lease or sale attempted to be made by plaintiff. It does not appear from the record that he was aware that she had signed the agreement. He knew that the plaintiff was endeavoring to sell the property, and was bringing prospective purchasers to inspect the rooms and furniture.
It is not shown that the property was advertised at any fixed price or rental, or that John Barrett had knowledge that effort was being made by plaintiff to sell it on any terms not satisfactory to him, excepting that he refused to sign an agreement for, or to receive, $700. No sale was in fact made, nor lease executed under the agreement. True, plaintiff secured an applicant willing to buy the personal property and rent the rooms on terms agreed to by Mrs. Barrett. When she refused to accept the money, she may have broken her agreement or become liable individually, but, as no such lease or sale of the personal property was ever consummated ■ by John Barrett, it cannot be said that he either authorized or ratified the sale which was not completed, and which was sought on terms to which he objected. Admitting that the agreement was sufficient to authorize the plaintiff to make a sale of the furnishings and to rent the premises, if the prop
The judgment against the defendant. John Barrett is set aside, and the cause is remanded for a new trial.
Rehearing
On Petition por Rehearing.
Petition for rehearing denied.
