Bevercombe v. Denney & Co.

Decision Date06 December 1924
CourtIdaho Supreme Court
PartiesA. L. BEVERCOMBE, Respondent, v. DENNEY & COMPANY, a Corporation, Appellant

CONTRACTS FOR THE SALE OF GOODS-STATUTE OF FRAUDS-PLEADING-PRINCIPAL AND AGENT.

1. An order of the trial court denying a motion for nonsuit will not be reviewed on appeal where subsequent to the order evidence is offered and admitted on behalf of the party making the motion.

2. The party relying upon the statute of frauds as a defense must allege it where it does not appear from the complaint that the contract sued upon falls within the statute.

3. A principal is bound by the acts of his agent within the scope of his apparent authority.

4. The contract of an agent in excess of his authority may be ratified by the principal.

5. A principal, who ratifies a contract of his agent made in excess of authority, is as fully bound as if the contract had been made with full authority.

6. The failure of an agent to follow his principal's instructions will not defeat the rights of a third person who dealt with the agent in good faith and in ignorance of the principal's instructions.

7. The authority of an agent to contract for his principal is a question for determination by the jury where there is a conflict of evidence as to the agent's authority.

8. Whether a principal ratified a contract made by his agent in excess of authority is, where there is a conflict in the evidence, a question for the jury.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Action for damages. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

J. H Helman, for Appellant.

Where an agent's authority is conferred by an instrument in writing, the principal will not be bound by the acts of his agent in excess of such authority, unless by subsequent ratification of such excesses, or a previous holding out to the public of such agent as having authority beyond the terms of such written instrument. (10 Ency. Ev. 13, 15, 27; Frink v. Roe, 70 Cal. 296, 11 P. 820; Grigham v Peters, 1 Gray (Mass.), 139; Claflin v. Continental Jersey Wks., 85 Ga. 27, 11 S.E. 721; McGregor v. Hudson (Tex. Civ.), 30 S.W. 489; Salomon v. McRae, 9 Colo. App. 23, 47 P. 409; Empire State etc. Co. v. Faulkner, 55 F. 819; Keane v. Pittsburgh Min. Co., 17 Idaho 179, 105 P. 60; Rosnagle v. Armstrong, 17 Idaho 246, 105 P. 216; Findlay v. Hildenbrand, 17 Idaho 403, 105 P. 790, 29 L. R. A., N. S., 409; C. S., secs. 5886-5888.)

"Where the agent's authority is conferred by a writing, parol evidence is not admissible to enlarge the written authority." (10 Ency. Ev. 13; Frink v. Roe, supra; Wicktorwitz v. Farmers Ins. Co., 31 Ore. 569, 51 P. 75.)

A principal cannot ratify an act of an agent without full knowledge of the facts. (Findlay v. Hildenbrand, supra.)

Porter & Witham, for Respondent.

Where an agent's authority is originally conferred by a contract in writing, the terms thereof may be waived or modified by the principal by subsequent oral or written instructions or acts inconsistent therewith. (31 Cyc. 1336; Dayton v. Nell, 43 Minn. 246, 45 N.W. 231; Duncan v. Hartman, 143 Pa. 595, 24 Am. St. 570, 22 A. 1099; 6 R. C. L. 914.)

Contracts made within the scope of the apparent authority of the agent are binding on the principal. (31 Cyc. 1331; 21 R. C. L. 852.)

C. S., sec. 7976, is superseded and repealed, in so far as it is inconsistent with C. S., sec. 5676. (Sess. Laws 1919, chap. 149, p. 472, sec. 79; Eigen v. Rosolin (N. Y.), 89 A. 923.)

Where the complaint alleges the contract generally without stating whether it was in writing or not, a statute of frauds such as C. S., sec. 5746, is not available as a defense unless specially pleaded. (Abraham v. Durward, 46 N.D. 611, 180 N.W. 783; Pearlberg v. Levisohn, 112 Misc. 95, 182 N.Y.S. 615; Spiegel v. Lowenstein, 162 A.D. 443, 147 N.Y.S. 655.)

WM. E. LEE, J. McCarthy, C. J., and William A. Lee, J., concur.

OPINION

WM. E. LEE, J.

This is an action for damages. In the fall of 1920, appellant, whose principal place of business in this state was Payette, through one J. C. Evans, its agent, contracted with respondent, a grower of potatoes, for the purchase of 1,050 bags of No. 1 potatoes for $ 1.15 per hundred F. O. B., and for the purchase of an additional 1,050 bags of No. 1 potatoes for 80 [cent] per hundred F. O. B. The date of the first contract was November 15th and the date of the second contract was December 3d. The potatoes were then stored in a potato cellar at Filer. Evans examined the potatoes before entering into the contracts. Upon consummation of each of the contracts, respondent demanded of Evans that he make a payment to bind the bargain. As a payment or deposit on the first contract Evans drew a draft or check on appellant for $ 50, signed "Denney & Co. by J. C. Evans." On the margin, Evans made the following notation: "Deposit on 1050 Bags of No. 1 spuds on cars a 115 per 100 #." The draft or check was on a printed form and, in addition to other matter ordinarily printed on such an instrument, there appeared at the top the following: "To Denny & Co. Payette, Idaho. No. 201." At the place ordinarily reserved for the signature of the maker or drawer there was printed the words "Denney & Co. By ." It was on the blank line that the agent Evans signed his name. As a part payment on the second contract, Evans drew draft or check No. 202, for $ 150, in favor of respondent. On the margin thereof he wrote the following: "For Deposit on 1050 Bags No. 1 spuds on cars . . . Totaling 2100 Bags. 1050 a $ 1.15--1050 a 80 [cent]" This instrument was on the same printed form. On December 4th, Evans gave to respondent check or draft No. 203, for $ 250. It was on the same form and signed in the same manner as the others. On the margin of this instrument Evans made the following notation: "Payment on Car No. P. F. E. 15055 $ 50 Deducted from Deposit and applied to this payment." The name of respondent appeared on the back of each instrument. They were deposited, and payment of each and all of them was refused. One carload of potatoes (P. F. E. 15055) was delivered and accepted by the agent, was billed to appellant, the bill of lading was delivered to appellant and the car of potatoes was shipped and sold by it. Appellant alleged that this car was consigned to it and that there was realized for respondent from a sale thereof the net sum of $ 245.52, which it tendered to respondent but which respondent refused to accept. There is no evidence whatever which tends to show that there was any consignment of this car. Thereafter respondent delivered to and appellant accepted about 20,000 pounds of potatoes for which it paid $ 145 and admitted that it owed $ 15. It is worthy of note that the $ 15 was not paid by appellant to respondent at the time of the delivery of the 20,000 pounds of potatoes because of the fact that too large a deposit had been made on one of the original contracts. There was a marked decrease in the market price of potatoes. Appellant refused to accept the delivery of the remainder of the potatoes, and respondent commenced this action to recover damages for the breach of the contract occasioned by the refusal of appellant to accept delivery of the remainder of the potatoes and to pay the contract price therefor. From judgment in favor of respondent, defendant appealed, and has assigned a number of errors. These assignments relate principally to the authority of the agent, the statute of frauds and the refusal to grant a nonsuit.

There is no merit in appellant's contention that the court erred in refusing to grant his motion for nonsuit; for upon the court's overruling the motion for nonsuit appellant introduced evidence in his own behalf. An order of the trial court denying a motion for nonsuit will not be reviewed on appeal where subsequent to the order, evidence is offered by and admitted on behalf of the party who made the motion. (Shields v. Johnson, 12 Idaho 329, 85 P. 972; Rippetoe v. Feely, 20 Idaho 619, 119 P. 465; Smith v. Potlatch Lumber Co., 22 Idaho 782, 128 P. 546; Palcher v. Oregon Short Line R. R. Co., 31 Idaho 93, 169 P. 298; Stewart v. Stewart, 32 Idaho 180, 180 P. 165; Groefsema v. Mountain Home Co-op. Irr. Co., 33 Idaho 86, 190 P. 356.)

Appellant contends that the two contracts are unenforceable for the reason that they fall within the inhibitions of the statute of frauds. This position is met by respondent with two contentions. One is that the contracts do not fall within the provisions of the statute of frauds. The other is that there is no allegation in the answer that the contracts are within the statute of frauds; and that, since this question was not raised by the answer, it is not here for review. The answer consisted of a specific denial of the allegations of the complaint, and there is no suggestion in the complaint or answer that the contracts for the sale of the potatoes are within the statute of frauds. Whether the checks or drafts, together with the notations thereon and the actions of the parties, was sufficient to take these contracts out of the statute need not be determined. We are of the opinion that the second contention of respondent is sufficient to dispose of the assignment. In 1919 there was enacted in this state what is known as the Uniform Sales Law. The purpose of this enactment, as expressed in sec. 74 thereof, was ". . . to make uniform the laws of those states which enact it." Section 4 of that act (C. S., sec. 5676), provides that:

"A contract to sell or the sale of any goods or choses in action of the value of five hundred dollars or upwards shall not be enforceable by action unless . . ."

C. S sec. 7976,...

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  • Wolford v. Tankersley, 13764
    • United States
    • United States State Supreme Court of Idaho
    • May 22, 1984
    ...119, 289 P.2d 319 [1955]. A principal is bound by the acts of his agent within the scope of his apparent authority. Bevercombe v. Denney & Co., 40 Idaho 34, 231 P. 427 [1924]; Arens v. Scheele, 63 Idaho 189, 119 P.2d 261 [1941]; Clark v. Tarr, 75 Idaho 251, 270 P.2d 1016 [1954]." Thus, it i......
  • Silicon Int'l Ore, LLC v. Monsanto Co.
    • United States
    • United States State Supreme Court of Idaho
    • November 27, 2013
    ...statute of frauds is not void but is voidable. Slusser v. Aumock, 56 Idaho 793, 794, 59 P.2d 723, 724 (1936) ; Bevercombe v. Denney & Co., 40 Idaho 34, 39, 231 P. 427, 429 (1924) ; see also 3 Williston on Contracts § 7:13 (4th ed.) ("Indeed, with respect to the Statute of Frauds, though the......
  • Carron v. Guido, 6100
    • United States
    • United States State Supreme Court of Idaho
    • May 29, 1934
    ......79, 102 S.E. 806.). . . Acts. within the apparent scope of an agent's authority are. binding on the principal. (Bevercombe v. Denney &. Co., 40 Idaho 34, 231 P. 427; Madill v. Spokane. Cattle Loan Co., 39 Idaho 754, 230 P. 45.). . . The. sale was the ......
  • Silicon Int'l Ore, LLC v. Monsanto Co., 39409.
    • United States
    • United States State Supreme Court of Idaho
    • November 27, 2013
    ...statute of frauds is not void but is voidable. Slusser v. Aumock, 56 Idaho 793, 794, 59 P.2d 723, 724 (1936); Bevercombe v. Denney & Co., 40 Idaho 34, 39, 231 P. 427, 429 (1924); see also3 Williston on Contracts § 7:13 (4th ed.) (“Indeed, with respect to the Statute of Frauds, though the St......
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