Blackwell v. Kercheval

• Decision Date: 11 October 1916
• Citation: Blackwell v. Kercheval, 29 Idaho 473, 160 P. 741 (Idaho 1916)
• Parties: F. A. BLACKWELL, Appellant, v. R. F. KERCHEVAL, Public Administrator, Administrator of the Estate of WILSON KISTLER, Deceased, Respondent
• Court: Idaho Supreme Court

160 P. 741

29 Idaho 473

F. A. BLACKWELL, Appellant, v. R. F. KERCHEVAL, Public Administrator, Administrator of the Estate of WILSON KISTLER, Deceased, Respondent

Supreme Court of Idaho

October 11, 1916

PRINCIPAL AND AGENT-UNAUTHORIZED ACTS OF AGENT-WHEN RATIFICATION INEFFECTUAL-CONSTRUCTION OF DOCUMENTS QUESTION FOR COURT-NONSUIT.

1. The general rule is that a ratification of the unauthorized acts of an agent, in order to be effectual and binding on the principal, must have been made with a full knowledge of all the material facts, and that ignorance, mistake or misapprehension of any of the essential circumstances relating to the particular transaction alleged to have been ratified will absolve the principal from all liability by reason of any supposed adoption of or assent to the previously unauthorized acts of an agent.

2. A principal does not ratify the unauthorized acts of his agent by accepting the proceeds or fruits thereof if knowledge of it did not come to him in time to enable him to repudiate the entire trans- action without essential injury or where all parties to the transaction cannot be placed in statu quo.

3. Where the evidence establishes that the unauthorized act of the agent was at the time a personal transaction of the agent made with a third party and was not intended by the third party or the agent to be made on behalf of the principal thereafter sought to be charged, there can be neither an express ratification nor an implied ratification by a retention of the benefits.

4. The question whether certain letters disclose the ratification of a previously unauthorized act of an agent, by which he seeks reimbursement from his principal, in the absence of ambiguity or a tendency to establish ratification, is primarily for the court to determine and not for the jury.

5. Where the plaintiff fails to make out a case for a jury, it is the duty of the trial court to dismiss the action and sustain a motion for nonsuit.

[As to general rules respecting authority of agents, see note in 16 Am.St. 493]

APPEAL from the District Court of the Eighth Judicial District for the County of Kootenai. Hon. John M. Flynn, Judge.

Action brought against defendant as administrator to recover loss occasioned by unauthorized acts of plaintiff as agent. Motion for nonsuit granted. Affirmed.

Judgment affirmed. Costs awarded to respondent.

John P Gray, for Appellant.

The lack of full knowledge does not protect a principal who deliberately chooses to act without such knowledge, or where he deliberately ratifies without full knowledge under circumstances which are sufficient to put a reasonable man upon inquiry. (31 Cyc. 1257; Clark v. Hyatt, 118 N.Y. 563, 23 N.E. 891; Johnson v. Ogren, 102 Minn 8, 112 N.W. 894; Mechem on Agency, sec. 153; Glor v. Kelly, 63 N.Y.S. 339; Kelley v. Newburyport & A. H. R. Co., 141 Mass. 496, 6 N.E. 745.)

The presumption of ratification will arise on slight facts when the act is plainly for the benefit of the principal. (1 Clark & Skyles on Law of Agency, sec. 137; Carlson v. Stone-Ordean-Wells Co., 40 Mont. 434, 107 P. 419; Winkleblack v. National Exchange Bank, 155 Mo.App. 1, 136 S.W. 712; Fitzgerald & Mallory Construction Co. v. Fitzgerald, 137 U.S. 98, 11 S.Ct. 36, 34 L.Ed. 608.)

By not disaffirming the act of the agent within a reasonable time, the principal must be held to have ratified it. (Union Gold M. Co. v. Rocky Mountain Natl. Bank, 96 U.S. 640, 24 L.Ed. 648; Twin-Lick Oil Co. v. Marbury, 91 U.S. 587, 23 L.Ed. 328; Clews v. Jamison, 182 U.S. 461, 21 S.Ct. 845, 45 L.Ed. 1183; Marsh v. Whitmore, 88 U.S. 178, 22 L.Ed. 482; Law v. Cross, 66 U.S. 533, 17 L.Ed. 185; Indianapolis Rolling Mill Co. v. St. Louis, F. S. & W. R. R. Co., 120 U.S. 256, 7 S.Ct. 542, 30 L.Ed. 639; Alaska & Chicago Commercial Co. v. Solner, 123 F. 855, 59 C. C. A. 662.)

The mere fact that Blackwell was a stockholder and officer of the Blackwell Lumber Co. and glad to see some of the treasury stock sold would not affect the character of the obligation from Kistler to him, or his character as Kistler's agent in the transaction. (Fitzgerald & Mallory Const. Co. v. Fitzgerald, supra.)

The correspondence in this case bears directly upon the matter in suit and tends largely to show what the real relations between Blackwell and Kistler were. All of it was competent testimony in the case, and the weight to be given each letter was a matter for the jury and not the court. (Rankin v. Fidelity Trust & Savings Deposit Co., 189 U.S. 242, 23 S.Ct. 553, 47 L.Ed. 792; Young v. Stephens, 66 Mo.App. 222; Carp v. Queen Ins. Co., 104 Mo.App. 502, 79 S.W. 757; Riordan v. Doty, 56 S.C. 111, 34 S.E. 68; Smith v. Covenant etc. Benefit Assn., 16 Tex. Civ. 593, 43 S.W. 819; 19 Cent. Dig. 618; Tritthart v. Tritthart, 24 Idaho 186, 133 P. 121.)

The principal may not take the benefits and reject the burdens, but he must either accept them or reject them as a whole. ( Haney School Furniture Co. v. Hightower Baptist Inst., 113 Ga. 289, 38 S.E. 761.)

An agent ordinarily is entitled to indemnity against the consequences of all principal acts done by him in the execution of his agency or in pursuance of the authority conferred upon him. (Corpus Juris on Agency, sec. 458.)

C. H. Potts, R. J. Danson and James A. Williams, for Respondent.

The construction of documents or writings in evidence is a question of law and to be determined by the court. ( Bragg v. Martenstein, 25 Cal.App. 199, 143 P. 79; Slater v. United States Health & Accident Ins. Co. of Saginaw, 133 Mich. 347, 95 N.W. 89; Foster v. Berg & Co., 104 Pa. 324; Dobbs v. Campbell, 66 Kan. 805, 72 P. 273; Bliven v. New England Screw Co., 64 U.S. 420, 16 L.Ed. 510; Mellen v. United States Health & Accident Ins. Co., 85 Vt. 305, 82 A. 4; Shubert v. Rosenberger, 204 F. 934, 123 C. C. A. 256, 45 L. R. A., N. S., 1062; 38 Cyc. 1429, 1522; 9 Cyc. 591, 776, 777.)

Ratification takes place only when the act claimed to be ratified was performed by one who intended it, at the time of performance, as the act of another and not the personal act of himself. ( Linn v. Alameda Min. & Mill. Co., 17 Idaho 45, 104 P. 668; 31 Cyc. 1251; Ellison v. Jackson Water Co., 12 Cal. 542; In re Roanoke Furnace Co., 166 F. 944; Mattock v. Young, 66 Me. 459.)

A ratification cannot take place without full knowledge of all the material facts. (31 Cyc. 1253; 1 Clark & Skyles on Agency, 106; Findlay v. Hildenbrand, 17 Idaho 403, 105 P. 790, 29 L. R. A., N. S., 400; Bank of Owensboro v. Western Bank, 13 Bush (Ky.), 526, 26 Am. Rep. 211.)

The mere fact that the principal has received or enjoyed the benefits of the unauthorized act will not amount to a ratification if he did so in ignorance of the facts; nor will his retention of such benefits after knowledge of the facts amount to a ratification if at the time he acquires such knowledge and without his fault conditions are such that he cannot be placed in statu quo. (31 Cyc. 1267-1270; Humphrey v. Havens, 12 Minn. 298; Moyle v. Congregational Soc., 16 Utah 69, 50 P. 806; Mills v. Berla (Tex.), 23 S.W. 910; Swayne v. Union Mut. Life Ins. Co. (Tex.), 49 S.W. 518; Martin v. Hickman, 64 Ark. 217, 41 S.W. 852; Bryant v. Moore, 26 Me. 84, 45 Am. Dec. 96; Claflin v. Wilson, 51 Iowa 15, 50 N.W. 578.)

BUDGE, J. Sullivan, C. J., and Morgan, J., concur.

OPINION

BUDGE, J.

This is an action brought by the appellant against R. F. Kercheval, public administrator, and as such administrator of the estate of Wilson Kistler, deceased, to recover the sum of $ 29,548, together with interest on $ 24,480 thereof since the first day of November, 1913. This appeal is from a judgment of dismissal entered upon a motion for nonsuit. The only error assigned and complained of is that "The court erred in granting the motion for a nonsuit and in entering judgment thereon."

The main facts in this case, briefly stated, are as follows:

One Wilson Kistler, of Lock Haven, Pennsylvania, was a stockholder in the Spokane and Inland Empire Railway Company, a corporation organized by the appellant herein and one J. P. Graves of Spokane. In January, 1909, the appellant sold his stock in the above-named corporation, and advised Kistler to dispose of his, but he decided not to sell. During that year, Graves, who had purchased not only the stock of the appellant but also other blocks of stock, sold his holdings, which constituted the control of the Spokane and Inland Empire Railway Company, to the Great Northern Railway Company.

Kistler visited Idaho in May, 1909, and after looking over the property of the Blackwell Lumber Company concluded to and did purchase $ 25,000 worth of stock in said company, and at the date of said purchase stated to one Schenker, private secretary to Blackwell, the appellant herein, that he hoped that Blackwell would be able to dispose of his (Kistler's) stock in the Spokane and Inland Empire Railway Company; that he desired to turn that investment and take additional stock in the Blackwell Lumber Company. To this end Kistler, by numerous letters, urged Blackwell to dispose of his (Kistler's) stock in the Spokane and Inland Empire Railway Company, that he might invest in stock of the Blackwell Lumber Company. After some correspondence between Blackwell and Kistler relative to the disposal of the latter's stock in the railway company and a transfer of the investment to the Blackwell Lumber Company, some time during the summer of 1909, one Davidson, secretary of the Inland company, advised Blackwell that he believed he could handle the Kistler stock through Graves, and thereupon gave Blackwell a memorandum in writing by which he agreed to take the Kistler stock; whereupon Blackwell telegraphed to Kistler to send on his certificates of stock in the Inland company,...