Beard v. Herndon

• Decision Date: 20 December 1921
• Docket Number: Case Number: 10359
• Citation: Beard v. Herndon, 84 Okla. 142, 203 P. 226, 1921 OK 443 (Okla. 1921)
• Parties: BEARD, Assignee, v. HERNDON.
• Court: Oklahoma Supreme Court

1921 OK 443

203 P. 226

84 Okla. 142

BEARD, Assignee, v. HERNDON.

Case Number: 10359

Supreme Court of Oklahoma

Decided: December 20, 1921

Syllabus

¶0 1. Husband and Wife--Chattel Mortgages--Validity--Authority of Husband to Execute.

As between a wife and the mortgagee, the authority of a husband to execute a chattel mortgage on the personal property of a wife may be by parol, may arise by implication from general authority to handle the business of the wife, or may be valid by subsequent ratification.

2. Principal and Agent--Ratification of Contract of Agent--Consideration.

Since ratification is equivalent to a prior authority, the original contract, after ratification and by force of the ratification alone, becomes the contract of the party as though it had in the first instance been made by the agent with authority; and hence no new consideration other than that inuring to the principal from the original contract is necessary to support a ratification.

3. Same--Sufficiency of Ratification--Intent--Conduct.

Ratification may be either express or implied, and unless said original contract is required to be in Writing the ratification may arise from conduct or may be expressed, and it is not necessary for the principal to ratify that he express such ratification in express terms, but it is sufficient if what he has stated or written shows an intention to ratify, as, when with knowledge of the facts he states, on being informed of what has been done, that it is all right, is sufficient to constitute a ratification.

4. Same--Pleading and Proof.

Proof of ratification includes proof of agency and authority, and may be made under a complaint charging the ratifying act to be that of the principal or under an averment in the pleading that an agent acted by due authority.

5. Appeal and Error--Review--Questions of Fact--Findings of Court.

In a law action, where a jury is waived and the cause submitted to the trial court, the same rule that is applied to a verdict of a jury in reviewing said verdict on appeal is applied to the judgment of the court acting in lieu of a jury, and if the judgment of the trial court is reasonably sustained by the facts, the same will not be disturbed upon appeal.

6. Replevin--Alternative Judgment for Value of Property--Proof.

In a replevin suit, where plaintiff recovers Judgment for the possession of the property and the property is in the possession of the defendant, no alternative money judgment can be entered for the value of the property in the event the property cannot be recovered, unless the value of the property is proved or admitted.

7. Husband and Wife--Validity of Chattel Mortgage--Estoppel.

The facts in this case examined and found hot to support a plea of estoppel.

8. Assignments for Benefit of Creditors--Rights of Assignee.

An assignee in an assignment for benefit of creditors gets no better rights than the assignor had at the time of assignment.

Error from District Court, Pantotoc County; J. W. Bolen, Judge

Action by R. A. Hemdon against J. W. Beard, assignee, to recover certain specific property based on a plea of special ownership under a mortgage made by owner to Herndon. From a judgment for plaintiff, defendant appeals. Affirmed as to the right of recovery of possession by plaintiff, but reversed and remanded, with directions to take proof of the value of the property and to enter an alternative money Judgment for plaintiff in the event possession of property cannot be had.

C. F. Green, for plaintiff in error.

Cutler & Holt, for defendant in error.

ELTING, J.

¶1 On February 9, 1918, an action was commenced by R. A. Herndon, plaintiff, against John W. Beard. assignee, defendant, by filing a petition and an affidavit in a replevin action for recovery of certain specific property, being specifically described in the petition and affidavit and being certain fixtures belonging to a grocery store which was the property of A. G. James. the wife of Ellis James, but which grocery store, it appears, was under the management and control of Ellis James, her husband. The basis of said suit for the recovery of said property is a chattel mortgage dated the 10th day of December, 1917, to secure the payment of three notes aggregating the sum of $ 356, which chattel mortgage purports to be executed by A. G. James by her attorney in fact, Ellis James.

¶2 The possession of said property was taken by the officer by writ of replevin issued, and property taken back under redelivery bond by John W. Beard, assignee. The notes secured by the mortgage fell due on December 20 and 24, 1917, and January 1, 1918. Upon the maturity of the first note the same had been paid, leaving still two notes due and unpaid at the time the suit was brought, in the total sum of $ 256. It was alleged that, after the taking of the notes and the mortgage and the maturity of the same and on the 26th of January, 1918, A. G. James made an assignment to John W. Beard, assignee, of all the property, including the property covered by the mortgage, for the benefit of certain of her creditors; alleging that the total value of the mortgaged property was $ 345.06. The affidavit for replevin was in the usual form, setting forth a special lien for the mortgage, declaring the plaintiff to be entitled to immediate possession thereof, and that the aggregate value of the property sought in the replevin was $ 345. No question was raised as to the regularity of the replevin.

¶3 To the petition and pleadings of the plaintiff the defendant, John W. Beard, first filed a special demurrer, then afterwards withdrew the demurrer and filed a motion to make the petition more definite and certain, which motion was in words and figures as follows:

"Comes now the above named defendant and withdraws his demurrer and files this motion to require the plaintiff to make his petition more definite and certain in the following particulars, to wit: 'Attach to said petition the authority of Ellis James to execute said notes and mortgage as attorney in fact for A. G. James.

"Wherefore, judgment of the court is prayed."

¶4 The motion of the defendant to make the petition more definite and certain was sustained by the court, and afterwards the plaintiff filed an amended petition which is in words and figures as follows, omitting the caption:

"Comes now the above named plaintiff, and for his amended petition complains of the above named John W. Beard, assignee, hereinafter called the defendant, and states to the court that both plaintiff and defendants are residents of Pontotoc county, Oklahoma, and that the said John W. Beard, defendant, is the duly appointed, qualified and acting assignee of the estate of one A. G. James, who on the 26th day of January, 1918, made an assignment of certain of her property for the benefit of her creditors, and for amended petition herein to comply with the order of this court made herein on May 3, 1918, the plaintiff says:

"That he adopts as part and parcel of this amended petition, paragraphs 1st, 2nd, 3rd, 4th, 5th, and 6th of his said petition originally filed herein on February 9, 1918, and in addition thereto, says further:

"7th. That in all the transactions mentioned herein and had between the plaintiff and the said A. G. James, the said A. G. James was duly represented by her husband, agent, and attorney in fact, Ellis James, who had ample power and authority to act in the premises; that said Ellis James attended to all the business of said A. G. James; that said A. G. James hardly knew of any of the details of her said business, and looked solely to her husband, Ellis James, to attend to everything and to manage the business, which he did; that before the execution and delivery of said notes and mortgage, said A. G. James and Ellis James both represented to plaintiff that said Ellis James was the duly authorized and empowered attorney in fact for said A. G. James, and had ample authority to act for said A. G. James in every capacity, including the power to mortgage said goods; that said plaintiff has not the said power of attorney in his possession, but states that same was duly in existence when said notes and mortgage were executed, and was in writing to the best of plaintiff's belief, and that ample proof thereof will be adduced at the trial hereof.

"Wherefore, plaintiff prays for judgment, as set out in his original petition first filed herein."

¶5 Afterwards the defendant filed an answer which was in words and figures as follows:

"Comes now the defendant, John W. Beard, assignee of A. G. James, and for answer to the original petition and to the amended petition filed herein on May 8, 1918, denies each and all of the material allegations contained in said petition and said amended petition.

II

"And defendant for further defense states that the said Ellis James did not have authority, either written or verbal, to execute the note and mortgage sued upon in this action; and defendant specifically denies the agency of Ellis James to act for A. G. James in this matter now in trial.

III

"And defendant further avers that the mortgage sued upon herein is not a valid mortgage and the filing thereof does not give notice under the statutes of Oklahoma.

"Wherefore defendant prays judgment of the court that he has fully answered the petition and the amended petition of plaintiff and that the plaintiff take nothing by reason of this action and that he be discharged with his costs.

"C. F. green, Attorney for Defendant, "State of Oklahoma, County of Pontotoc, ss.

"John W. Beard, Assignee of A. G. James. upon oath states that he has read the above and foregoing answer and is acquainted with the contents thereof and that the allegations and statements therein are true: and defendant further states that he specifically denies by this verification the agency and authority of Ellis James to execute the note and mortgage sued upon herein.

"John W. Beard, Assignee of A. G. James.

"Subscribed and sworn to before me this 16th day of May, 1918. My

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