Atlanta National Building & Loan Association v. Bollinger

• Decision Date: 14 November 1896
• Citation: 37 S.W. 1049,63 Ark. 212
• Parties: ATLANTA NATIONAL BUILDING & LOAN ASSOCIATION v. BOLLINGER
• Court: Arkansas Supreme Court

37 S.W. 1049

63 Ark. 212

ATLANTA NATIONAL BUILDING & LOAN ASSOCIATION v. BOLLINGER

Supreme Court of Arkansas

November 14, 1896

Appeal from Sebastian Circuit Court, Fort Smith District, EDGAR E BRYANT, Judge.

Reversed and dismissed.

Winchester & Martin for appellant.

If the company can be held at all, it must be because, with a knowledge of this contract, it ratified and confirmed it. Mechem, Agency, sec. 546, and cases cited. There is no evidence of this. To work an estoppel, there must be knowledge and conduct. Bigelow, Estoppel, 546, 547, 552, 588 589, et seq. Ratification can be predicated only upon knowledge, or upon intentional and deliberate ignorance. 55 Ark. 242; ib. 426-7; ib. 631, 632; 29 id. 530. In this case the contract sued on was made after the sale of the stock and the sale of stock was the only business the agent was authorized to transact.

Joseph M. Hill and Preston C. West for appellee.

OPINION

WOOD, J.

This appeal is to reverse a judgment for $ 220.00, recovered on the following contract: "Fort Smith, Ark., December 6, 1893. R. C. Bollinger, of Fort Smith, Ark., having subscribed for and received from Atlanta National Building & Loan Association, of Atlanta, Ga., seventy shares of stock, being taken for securing a loan of seven thousand dollars: Now, I, undersigned, as special agent for said association, and in my individual capacity, hereby agree and covenant to return to said R. C. Bollinger his initiation fee and all monthly dues that he may have paid, provided that he does not secure said loan within ninety days after the time his application for such loan was received at the home office of the association, said application having been acknowledged received by the association, November 17, 1893, the said R. C. Bollinger covenanting to pay his monthly dues promptly to the above mentioned time, and any failure to do so will render this argument null and void. (Signed) W. B. Hammond, R. C. Bollinger.

The answer, inter alia, denies the contract, and the authority of the agent to make it. The court instructed the jury that the contract was "not binding on the defendant association, unless it had by its action estopped itself to deny its binding effect on it." This was correct, for the undisputed evidence shows that the agent had no authority to bind the association by such a contract. What is the proof of estoppel? Appellee contends that appellant, "with full knowledge of the contract, ratified it by silence, after being called upon to respond to its force," The proof shows that on November 25, 1893, appellee wrote to the secretary of appellant as follows: "Dear Sir: I was very much surprised on receiving your papers stating that I would have monthly dues to pay before the loan of $ 7,000 was made, for which I applied. Mr. Hammond told me that if you accepted the loan, I could get the money right away; that there would be no delay; that if you did not accept the loan, then the eighty dollars which I paid him would be returned. Now, I will tell you my circumstances, which I explained to Mr. W. B. Hammond. We have $ 7,000 borrowed on the property from M. Joel, and it is now due, and he insists on having the money, and threatens to foreclose. Now, Mr. Hammond says that you have already accepted the loan, but the papers you sent me don't show it, and don't say so. Let me know at once how soon I can accept the money, as I must know something definite at once. Yours truly, R. C. Bollinger." And received the following reply: "Atlanta, Ga., November 28, 1893. Mr. R. C. Bollinger, Fort Smith, Arkansas. Dear Sir: Yours of 25th inst. received, and I am somewhat surprised at its contents. You state that Mr. Hammond told you that you could get the money right away, and further that you should not be required to pay dues until you did get it, etc. I cannot understand why Mr. Hammond should make such a statement, for the fact is that loans by the association are only made in the regular way, as indicated in the plans and by-laws herewith. And I refer you especially, in reference thereto, to pages 9, 10 and 11. All applications for loans are treated as therein indicated. Please read the literature carefully, as we strictly comply therewith. Yours truly, J. W. Goldsmith, Secretary."

And again in December appellee wrote as follows: "Mr. J. W Goldsmith, Secretary Atlanta National Building & Loan Association--Dear Sir: I would not object to paying monthly assessments, if I could be assured by you of getting...