59 Neb. 783 | Neb. | 1900
It appears from the record that the plaintiffs,, appellants, are members of a copartnership engaged in the retail lumber and building material business at McCook, Nebraska, the business being in charge, and under the supervision, of one U. J. Warren, as agent. The defendants, appellees, being desirous of erecting a dwelling-house, entered into negotiations with one U. A. Killebrew, a contractor, who undertook to construct such building, furnishing all necessary labor and material. Killebrew entered into a written contract with the owners for that purpose, and, in connection therewith, executed a bond in the sum of $1,000, conditioned for the faithful performance of such contract, which bond was signed by the said Killebrew, as principal, and the plaintiffs, by their agent, as surety thereon. The contractor failed to complete the building, and failed to pay for much of the material that was furnished to be used therein. The plaintiffs furnished the building material and, not being paid therefor, claimed a lien on the premises on which the building was erected and undertook to foreclose the same in the present action. The owners of the premises, appellees, in their answer pleaded that the plaintiffs, for the purpose of selling the material and of inducing them to award the contract to the contractor securing the same, with the said contractor executed the bond an:' that, because of the damage sustained by a breach of the contract, the plaintiffs were not entitled to enforce their lien against the premises on which it was claimed. The plaintiffs replied that the agent was without authority to sign the firm name to' the bond, and that their name on the bond was without their knowledge or consent and without authority, and was not valid and binding upon them. The case proceeded to a hearing Upon the issues thus joined.
A correct disposition of the- case hinges upon the validity, force and effect to be given the contractor’s bond, and the inference proper to be drawn from the circumstances surrounding its execution. Counsel for appellees contends that “whether or not Warren had authority to sign appellants’ business name to the bond, is immaterial, for two reasons: first, he secured the privilege of furnishing the building material by signing the bond, and furnished the material after the bond was signed by virtue of the representations contained in the bond; second, the appellants, by their manager and
No word or act is called to our attention which can be construed as a waiver, unless it be in connection with the execution of the bond. It would seem that, if the act was beyond the scope of the agent’s power and unauthorized, it would be a contradiction of terms and illogical to hold that the unauthorized and wrongful act of the agent became effective for the purpose of preventing plaintiffs from asserting their right to a lien, which they .were possessed of, save for the unwarranted acts of the agent. This would be accomplishing by circumlocution that which frankness and consistency would require should be directly reached. The act of the agent in signing his principals’ name to the bond is admittedly beyond the scope of his authority, and therefore unauthorized, and this being true, such unauthorized acts, unless ratified, can not be given vitality for the purpose of depriving plaintiffs of a right to a lien which they otherwise possessed. The agent was not authorized' to enter into obligations in the name of his principals for the faithful performance by others of their contracts for the erection of buildings. He was not authorized to make representations by going on
No waiver having been shown, the remaining question is whether the plaintiffs, by any act of theirs, in any way ratified the agent’s unauthorized acts in signing their name to the bond. We hold this must be answered in the negative. None is attempted to be shown; nor is any knowledge thereof imputed to the principals, except as knoAvledge by the agents may be binding upon them. In Trudo v. Anderson, 10 Mich., 307, it is said: “And an agent can not ratify an act done by himself or his servant beyond the scope of the agency, so as to bind the principal; otherwise an agent might enlarge his own powers to any extent without his principal’s consent.” In Western Nat. Bank v. Armstrong, 152 U. S. Sup. Ct. Rep., 346, Justice Shiras, writing the opinion, says: “It is scarcely necessary to say that a ratification, to be efficacious, must be made by a party who had power to do the act in the first place; * * * and that it must be made with knowledge of the material facts.” In O’Shea v. Rice, 49 Nebr., 893, Judge Post, then a member of this court, says: “It is elementary law that knowledge by the prin
The numerous authorities cited by the learned counsel for defendants are scarcely in point. Most, if not all, of the legal propositions invoked are sound, but, in our opinion, are not applicable to the controlling factors in this case.
The judgment of the lower court is reversed, and the case remanded with instructions to enter a decree establishing a lien in favor of plaintiffs for the amount found due on the account for which a lien is claimed. Judgment accordingly.
Reversed and remanded.