Blackwell v. Kercheval

• Decision Date: 15 June 1915
• Citation: 27 Idaho 537,149 P. 1060
• Parties: F. A. BLACKWELL, Appellant, v. R. F. KERCHEVAL, Respondent
• Court: Idaho Supreme Court

149 P. 1060

27 Idaho 537

F. A. BLACKWELL, Appellant, v. R. F. KERCHEVAL, Respondent

Supreme Court of Idaho

June 15, 1915

DEMURRER-ADMISSION IMPLIED BY-RATIFICATION OF UNAUTHORIZED ACT OF AGENT-EFFECT OF-CONSIDERATION FOR-RATIFICATION A QUESTION OF FACT.

1. In considering the questions raised on an appeal from an order of the trial court sustaining a demurrer to the complaint the truth of every material allegation of the complaint which is well pleaded must be deemed to be admitted by the demurrer.

2. A principal may ratify an unauthorized act of his agent if, at the time of such ratification, he has knowledge of all of the material facts connected with the transaction, and the ratification may be either by words or by conduct indicating an intention on the part of the principal to adopt the act as his own; such intention is implied from an acceptance of the benefits of the unauthorized act.

3. Where a principal, with knowledge of the facts, ratifies the unauthorized act of an agent, principal and agent are invested with the same rights and obligations respectively as if the transaction had been previously authorized, and the agent is thereby relieved from personal responsibility by reason of such unauthorized act, whether he exceeded or departed from his instructions, or was a mere volunteer with regard to the conduct in question.

4. One who voluntarily accepts the benefits of an unauthorized act by another, ratifies the act, and takes it as his own with the burdens incident thereto. One may not appropriate the benefits of a transaction made in his behalf, and while retaining them, disavow the burdens or disadvantages arising out of it.

5. A principal's ratification of the act of his agent requires no new consideration.

6. Where a request is made to continue services of a character theretofore rendered, or with regard to the same subject matter, the continuance of such services is a sufficient consideration to support a promise to pay for those rendered prior to such request.

7. Where the admitted facts surrounding a given transaction are such that reasonable men could draw different conclusions as to whether or not there has been a ratification by the principal of the unauthorized act of an agent, or the extent of such ratifica- tion, the question is one of fact to be determined by the jury under proper instruction from the court, and it is error to sustain a general demurrer to a complaint, where it appears from the allegations that questions of fact are involved.

8. Held, that the complaint in this case states a cause of action, and that the demurrer should have been overruled and the defendant required to answer.

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

Action to recover on an alleged contract of agency. Demurrer to complaint sustained and judgment rendered in favor of defendant. Reversed.

Cause remanded with directions. Costs awarded to appellant. Petition for rehearing denied.

John P Gray, for Appellant.

"The subsequent ratification of the act done by even a voluntary agent of another without authority from him is equivalent to a previous authority." (Gleason v. Dyke, 22 Pick. (39 Mass.) 390; Viley v. Pettit, 96 Ky. 576, 29 S.W 438.)

In the case at bar, Mr. Kistler, knowing all the facts, not only consented to Mr. Blackwell's actions in connection with the transaction, but expressly affirmed them; accepted the benefits of them; did not reject or object to them, and agreed to indemnify him. (Gelatt v. Ridge, 117 Mo 553, 38 Am. St. 683, 23 S.W. 882; Tiffany on Agency, 86; Mechem on Agency, secs. 350, 351, 500, 498, 1521, 1609; Wharton on Agency, sec. 87; Drakely v. Gregg, 8 Wall. (U.S.) 242, 19 L.Ed. 409.)

A new consideration is not necessary to support the ratification of an agent's unauthorized contract. (McLeod v. Morrison & Eshelman, 66 Wash. 683, 120 P. 528, 38 L. R. A., N. S., 783; Lynch v. Smyth, 25 Colo. 103, 54 P. 634; Fant v. Campbell, 8 Okla. 586, 58 P. 741.)

A promise founded partly on a past consideration and partly on an executory one is enforceable. (9 Cyc. 362; Fisk Min. & Mill Co. v. Reed, 32 Colo. 506, 77 P. 240.)

A moral obligation, accompanied by a benefit received by the promisor, is sufficient in connection with the receipt of such benefit to support a contract. (Goulding v. Davidson, 26 N.Y. 604; Doty v. Wilson, 14 Johns. (N. Y.) 378; Lycoming County v. Union County, 15 Pa. 166, 53 Am. Dec. 575-581; Doyle v. Reilly, 18 Iowa 108, 85 Am. Dec. 582; Chadwick v. Knox, 31 N.H. 226, 64 Am. Dec. 329.)

C. H. Potts and G. D. Lantz, for Respondent.

Since appellant did not assume to act as agent for Mr. Kistler in so far as the taking of the note and its indorsement were concerned, all question of ratification is eliminated from the case presented to the court. Where acts are not performed by one claiming at the time to act as agent, ratification cannot exist. (31 Cyc. 1251; Ellison v. Jackson Water Co., 12 Cal. 542; In re Roanoke Furnace Co. , 166 F. 944; Mattocks v. Young, 66 Me. 459.)

Appellant is relying upon a contractual obligation, an obligation arising, if at all, independent of the relation of principal and agent. (Thomson v. Thomson, 76 A.D. 178, 78 N.Y.S. 389; Sharp v. Hoopes, 74 N.J.L. 191, 64 A. 989.)

A mere statement of intention made without intention to contract is not such an offer as may be turned into an agreement by acceptance. (9 Cyc. 276.) Without an acceptance an offer gives rise to no obligation. (9 Cyc. 244, 247, 254.) Gleason v. Dyke, 22 Pick. (39 Mass.) 390, cited by appellant, has been overruled. The Massachusetts cases support respondent's contention. (Massachusetts Mut. Life Ins. Co. v. Green, 185 Mass. 306, 70 N.E. 202; Moore v. Elmer, 180 Mass. 15, 61 N.E. 259, 260.)

The New York cases are in line with the weight of authority on past consideration in general. (People v. Barker, 17 Misc. 497, 41 N.Y.S. 237; Perkins v. Smith, 83 A.D. 630, 81 N.Y.S. 955; Blanshan v. Russel, 32 A.D. 103, 52 N.Y.S. 963, 161 N.Y. 629, 55 N.E. 1093; Myers v. Dean, 11 Misc. 368, 32 N.Y.S. 237, 238; Sheperd v. Young, 8 Gray (74 Mass.), 152, 69 Am. Dec. 242; Collins v. Martin, 43 Kan. 182, 23 P. 95; 9 Cyc. 360, 361; Gardner v. Schooley, 25 N.J. Eq. 150; Updike v. Titus, 13 N.J. Eq. 151.)

If a promise is made because of a sense of honor, that of itself will not constitute a valuable consideration. (Morris v. Norton, 75 F. 912, 21 C. C. A. 553.)

Where benefits are conferred without a request, express or implied, a subsequent promise to pay therefor is not supported by a consideration. (Cook v. Bradley, 7 Conn. 57, 18 Am. Dec. 79; Carson v. Clark, 1 Scam. (2 Ill.) 113, 25 Am. Dec. 79; Boston v. Dodge, 1 Blackf. (Ind.) 19, 12 Am. Dec. 205; Warren v. Whitney, 24 Me. 561, 41 Am. Dec. 406; Woodburn v. Renshaw, 32 Mo. 197; Savage v. Burns, 3 Mont. 527, 531; Wilson v. Edmonds, 24 N.H. 517, 546; Sharp v. Hoopes, 74 N.J.L. 191, 64 A. 989; Bailey v. Rutjes, 86 N.C. 517; Whitall v. Morse, 5 Serg. & R. (Pa.) 358; Shepard v. Rhodes, 7 R. I. 470, 84 Am. Dec. 573; McCord v. Dodson, 10 Heisk. (57 Tenn.) 440; Davis v. Anderson, 99 Va. 620, 39 S.E. 588; 9 Cyc. 356-360, and numerous cases cited; 22 Cyc. 83.)

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

OPINION

BUDGE, J.

This action was brought by F. A. Blackwell against R. F. Kercheval, public administrator, as administrator of the estate of Wilson Kistler, deceased, to recover judgment against said estate for the sum of $ 29,500.48 with interest.

To the second amended complaint a general demurrer was sustained by the trial court, and upon refusal of plaintiff to further amend his complaint, judgment of dismissal was entered, from which judgment this appeal is taken.

Omitting the formal parts, and the general allegations of the appointment of R. F. Kercheval, public administrator, as administrator of the estate of Wilson Kistler, deceased, the material allegations of the complaint are that, on or about June, 1909, Kistler besought the plaintiff, Blackwell, to sell certain common stock of the Spokane & Inland Empire Railway Company owned by him amounting to 510 shares, and authorized plaintiff to negotiate and consummate the sale thereof; that the plaintiff sold the stock to one Davidson for $ 24,480, and accepted the note of Davidson for this amount in payment of the stock.

The transaction between Blackwell and Davidson was completed on November 1, 1909, and on the following day, to wit, November 2, 1909, Blackwell wrote a letter to Kistler at Lock Haven, Pennsylvania, in which he advised Kistler of the sale of the stock to Davidson and that Davidson had given him a note for the proceeds, and in concluding his letter stated: "I have accepted this note and turned same over to the Blackwell Lumber Co. Mr. Davidson is worth the money and I think will meet the note. This is a chance the Blackwell Lumber Co. has taken, or rather that I took, as I have indorsed the note."

Kistler, on November 8, 1909, addressed a letter to Blackwell, in which he stated: "I hardly expected that you would take the trouble in closing up the matter and go as far as you did in reaching a conclusion where a body might have supposed there would have been enough interest with the representatives of the Inland Empire Railroad Co., to at least have made an effort to protect innocent stockholders. I would not expect that you should take any chances in the closing of this matter, and if in the future anything should turn up with this that would cause you any inconvenience, if you will please let me know, I will take the matter up and see that you are fully protected."

It is then alleged in the complaint that the note in question was not in fact turned over to the Blackwell...