57 F. 973 (W.D.Tex. 1893), 1,918, Russ v. Telfener

Docket Nº:1,918.
Citation:57 F. 973
Party Name:RUSS v. TELFENER.
Case Date:July 11, 1893
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 973

57 F. 973 (W.D.Tex. 1893)

RUSS

v.

TELFENER.

No. 1,918.

United States Circuit Court, W.D. Texas, Austin Division.

July 11, 1893

Hancock & Shelley and Miller & Fiset, for plaintiff.

J. L. Peeler, for defendant.

Page 974

MAXEY, District Judge, (charging jury.)

Plaintiff brings his suit to recover damages because of alleged breach of contract on part of defendant. In his pleadings the plaintiff sets up two contracts which, he claims, were executed by the defendant. The first is known as 'Exhibit M,' and the second as 'Exhibit N.' Both were executed on the same day, to wit, the 1st day of November, 1882, and both were signed by the same parties. The plaintiff signs his own name in person, and the name of defendant is signed as follows: 'J. Telfener, by C. Baccarisse, Ag't.' The defendant denies that he executed the contracts in person, and further denies that Baccarisse had authority to execute them in his behalf, and hence he claims that they are not binding upon him.

The first question, therefore, presented for your consideration, is whether the contracts, particularly the one known as 'Exhibit M,' were executed in such manner as to be valid and binding upon the defendant. No formal power of attorney executed by the defendant has been introduced in evidence, expressly conferring authority upon Baccarisse to execute the contracts in question. You must therefore look to all the facts and circumstances in evidence, apart from the declarations of those professing to act as agents, to determine whether Baccarisse was duly authorized to execute the contracts declared upon. If, from consideration of the evidence, you conclude that Baccarisse had authority, direct from the defendant, to execute the contract in his behalf, then it would be binding upon the defendant. It would also be binding upon the defendant if Westcott, with authority from, and knowledge and consent of, defendant, empowered Baccarisse to execute it. But if Baccarisse was neither empowered directly by the defendant, nor by Westcott, with authority from and knowledge and consent of defendant, to execute the contract, then it would not be binding upon the defendnat, unless he ratified the same, as hereinafter stated. If Baccarisse had no authority from defendant or Westcott, as above stated, to execute the contract, then it would not be binding upon the defendant, unless he, having full knowledge of the terms of the agreement and the material facts and circumstances attending its execution, acquiesced in and recognized the same as his contract, in which event he would be held to have ratified it, and it would be binding upon him.

To make it binding upon him in such case, you observe, he must have ratified the contract with full knowledge of its terms and of the material facts and circumstances attending its execution. If he did so ratify it, then it would be binding upon him as though he had given authority to make the contract before the same was executed. It is a familiar maxim that ratification has a retroactive efficacy, and relates back to the inception of the transaction, and, when deliberately made with a knowledge of the circumstances, as before stated, cannot be revoked or recalled.

If you find from the evidence that Baccarisse had authority from the defendant, or from Westcott, with the defendant's assent, approval, and knowledge, to contract with individuals generally

Page 975

for the purpose of procuring lands under the act of the legislature of 1879, by filing upon them and having the same surveyed, then you are instructed that the acts of Baccarisse were binding upon the defendant, as such acts came within the scope of his authority, and defendant cannot avoid liability thus created, notwithstanding he might have given private instructions to Bacearisse not to purchase without referring the matter to him for his ratification, provided that such instructions were not communicated to and known by the plaintiff. If, however, the plaintiff knew that Baccarisse was instructed not to close any trade without first referring the matter to the defendant, then the plaintiff could not enforce a contract so made with Baccarisse without complying with such restrictions upon his authority.

To illustrate, (and in the illustration I quote the language of my predecessor in charging the jury upon a former occasion:)

'Suppose I send out agents to procure lands for me by purchase, or otherwise. I give my agents certain specific directions to govern them, and then say to them, 'You must, before closing the trade, submit the trade to me for my approval.' My agents go out and contract with persons, and do close a trade, but without referring the same to me before closing. The agent having pursued the ordinary mode for procuring lands, and the person with whom he deals not being advised of the restrictions by me placed upon my agent, but deals with him in good faith, and upon that faith changes his relation to the property, I am bound, because the agent acted within the general scope of his authority,' and because the third persons are not affected by private instructions given to the agent which are not made known to them. 'This is, of course, to be taken with the qualification that if the person dealing with the agent knew of the instruction which was a limitation upon his right to act, and made a contract in violation of that instruction, he cannot enforce it against me.'

The defendant having denied under oath the execution of the contract by duly-authorized agent, the burden is upon the plaintiff to prove, by a preponderance of the evidence, that the contract was executed in such manner as to be binding upon the defendant.

If, upon a consideration of all the facts and circumstances in evidence, taken in connection with the foregoing charge, you reach the conclusion that the contract is not binding upon the defendant, then you will proceed no further except simply to return a verdict in his favor. If, however, your finding upon that issue be in favor of the plaintiff, you will then proceed to...

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