Baker v. Seaward

• Citation: 127 P. 961,63 Or. 350
• Parties: BAKER v. SEAWARD.
• Decision Date: 03 December 1912
• Court: Supreme Court of Oregon

127 P. 961

63 Or. 350

BAKER v. SEAWARD.

Supreme Court of Oregon

December 3, 1912

Appeal from Circuit Court, Malheur County; Dalton Biggs, Judge.

Action by R.E. Baker against E.F. Seaward. Judgment for defendant and plaintiff appeals. Reversed and remanded.

This is an action to recover $750, money had and received by defendant for the use of plaintiff. The facts out of which the action arose are that the plaintiff owned and managed two bands of sheep in Malheur county, and about October 20, 1910 intended visiting Colorado Springs for his health, to be gone about two months. He left one E.P. Mickey in charge of the sheep, and authorized him to sign plaintiff's name to checks on the First National Bank of Ontario, with which to pay the herders, to pay for provisions, and for any ordinary expense for the care of the sheep; that on the 28th day of November, 1910, Mickey purchased three head of horses from the defendant at the agreed price of $750, and gave in payment a promissory note in that sum, payable in 30 days to the order of the defendant, signed "R.E. Baker, by E.P Mickey." At the maturity of the note Mickey issued to defendant a check on the First National Bank of Ontario for the sum of $750, signed "R.E. Baker, by E.P Mickey," which check was cashed by the bank and charged to the account of plaintiff, which he paid to the bank, and plaintiff sues to recover from defendant the amount of the check, for the reason that Mickey had no authority to purchase the horses, nor to issue the check therefor. Defendant alleges in the answer that plaintiff and Mickey were partners in the said sheep business, and that during the time of said transaction Mickey was, by plaintiff, placed in personal charge of said business, with full authority to buy sell, and pay for anything connected with the transaction of such business. At the close of the evidence the court instructed the jury, among other things:

"(7) I instruct you that an agent of a party has the authority to bind his principal in any transaction within the apparent scope of his agency, and that a person dealing with an agent is bound at his peril to ascertain the extent of the agent's authority; and if you find in this case that the said E.P. Mickey was the agent of plaintiff, and was acting within the apparent scope of his agency in purchasing the horses from the defendant, then your verdict should be for the defendant in this case; but if you find that said E.P. Mickey was not the agent of defendant, or that buying and paying for horses was not within the apparent scope of the agent's authority, then you will find for the plaintiff in the case.

"(8) A principal can so hold a person out to the world as being his agent, with certain authorities, as to bind the principal as to the acts of the agent. ***"

"(11) By the 'apparent scope of authority' is meant the authority which a person appears to have from the general nature of the business which he is employed, as an agent, to handle.

"(12) It is also claimed by the defendant that the plaintiff ratified and confirmed the sale of said horses and the payment of said money for the sale; and in that respect I instruct you that a principal may ratify and confirm the act of his agent, either by express acts or by implication. In this case there is no evidence before you that plaintiff expressly ratified and confirmed said sale; but if you find from the evidence that said Mickey did purchase certain horses from the defendant, and that said horses were used in the business owned by plaintiff and managed by said E.P. Mickey after plaintiff had been informed of the purchase of the same, then I instruct you that that would constitute a sufficient ratification of the act of said Mickey; and I further instruct you that it is necessary for a principal to disaffirm or disavow an act of an agent within a reasonable time after coming into possession of the facts and information concerning such act, and if he fails to disavow or disaffirm such act within a reasonable time after obtaining information thereof it is tantamount to a ratification of such acts. ***"

Thereupon the jury rendered a verdict for the defendant, and plaintiff appeals.

William H. Packwood, Jr., of Baker (John L. Rand, of Baker, on the brief), for appellant.

Brooke & Tomlinson, of Ontario, for respondent.

EAKIN, C.J. (after stating the facts as above).

Two principal defenses are relied upon, namely, that Mickey, as agent for plaintiff, had authority to purchase the horses, and that plaintiff ratified said purchase.

We will first ascertain the law as to the agency, and who must determine the issues thereunder....