Bouquot v. Awad
| Decision Date | 14 December 1915 |
| Docket Number | 4946. |
| Citation | 153 P. 1104,54 Okla. 55,1915 OK 1045 |
| Parties | BOUQUOT ET AL. v. AWAD. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where A. intrusts an agent with a deed to his real estate, with the name of the grantee in blank, authorizing him to sell such land for cash or to trade it for other real estate, and the agent causes the name of B. to be filled in the deed delivers the deed to B., takes in consideration therefor a bill of sale to himself of a stock of goods, goes into possession thereof, and sells and disposes of such goods as his own without the knowledge of A. until the stock is taken from him by a writ of attachment at the suit of a creditor of such agent, held, that an action in replevin by A to recover the stock of goods from the attaching officer as the owner thereof is not a ratification of the act of the agent in taking a bill of sale of such goods to himself and disposing or attempting to dispose of the same as his own.
An owner of chattels is not estopped from asserting his right thereto by reason of the fact that his agent has taken a bill of sale of the same, and has held himself (the agent) out as the owner thereof against an attaching creditor claiming under a pre-existing debt of the agent, where such creditor has parted with nothing of value, and has not been led to change his position to his prejudice upon the faith of such claim of ownership by the agent.
Instructions given and refused examined, and the action of the trial court in giving and refusing such instructions held to be free from reversible error.
A precedent for a journal entry of a judgment signed by the judge and filed in the cause held not competent evidence of the rendition of the judgment.
Commissioners' Opinion, Division No. 1. Error from District Court, Woodward County; James W. Steen, Judge.
Action by Mohamet B. Awad against John J. Bouquot and others. Judgment for plaintiff, and defendants bring error. Affirmed.
Hoover & Swindall, of Woodward, for plaintiffs in error.
Chas R. Alexander, of Woodward, for defendant in error.
RUMMONS C. (after stating the facts as above).
Counsel for defendants in their brief assign 23 grounds of error as cause for a reversal of the judgment of the trial court. These assignments are grouped under 12 heads. We will consider these assignments as nearly in the order presented as we can in determining this case. Plaintiff in his petition alleges that on the 24th day of December, 1910, he had the goods and chattels which he seeks to recover in a certain store building, and was preparing and had been preparing to make a special sale thereof, as a Christmas sale, at public auction, and that he was prevented from holding said sale because of the attachment of defendants. He also alleges that on said 24th day of December, 1910, he had in his employ one Chas. Awad, whom he was paying and has paid the sum of $2 per day for six days during which time the said Chas. Awad was prevented from rendering service by reason of the attachment of defendants. Plaintiff testified at the trial that he knew nothing of the trade made by Chas. Awad for the stock of goods until he arrived at Woodward in response to a telegram from Chas. Awad, and that he then tried to rescind the trade without avail, and, after finding such rescission could not be made, he brought this action of replevin to take the stock of goods from the possession of the sheriff in whose hands they were when he arrived at Woodward.
Under the first heading of the brief of defendants embracing their first, second, third, fourth, and fifth assignments of error, counsel for defendants argue at some length and with considerable ingenuity that the plaintiff by bringing this action of replevin thereby ratified the trade made by Chas. Awad in its entirety; not only that he ratified the delivery of the deed and the conveyance of the land to Beers, but also ratified the act of Beers and Chas. Awad in giving and taking a bill of sale to the stock of goods in the name of Chas. Awad and the taking possession by said Chas. Awad of said stock of goods and selling and disposing of the same for his own benefit. Counsel also seek to show by the allegations of the petition of plaintiff above referred to, which they claim are wholly inconsistent with his testimony that he ratified in toto all the actions of Chas. Awad in the premises. We cannot agree to the soundness of the contention of defendants. Plaintiff by seeking to recover possession of the stock of goods as the owner thereof unquestionably ratified the conveyance of the land to Beers, which question is not involved in this case; but it cannot be said that he thereby ratified the act of his agent, Chas. Awad, in taking the stock of goods in his own name and disposing of it or attempting to dispose of it as his own property. The very fact that he brought this replevin suit seeking to recover possession of this stock of goods as the owner thereof, and his ratification rests solely upon that fact, refutes any claim that he thereby intended a ratification of the act of Chas. Awad in taking for himself this stock of goods; for, if he ratified the transaction in its entirety and intended for Chas. Awad to have the stock of goods for his own, his replevin action would be without foundation, and he would have no claim or right to recover therein. It is apparent from the evidence in the record, which does not seem to be disputed, that Chas. Awad made the trade in violation of his instructions, and undertook to cheat and defraud his principal out of the stock of goods. He never acquired any title to the stock of goods by his wrongful acts, but during the whole transaction up to the time the writ of attachment was levied was in the eyes of the law the agent of the plaintiff. It is apparent that an agent cannot in consummating a trade for his principal take the consideration which he receives for a sale of his principal's property to himself; and, if he attempts to do so, the principal can make him account therefor, and can recover the property taken as consideration for such sale from the agent or any one claiming under him, unless he has been estopped by his conduct in the premises, as will be hereinafter considered.
We do not think the authorities cited by defendants upon the subject of ratification are applicable to the facts in this case. As has been said the agent, Chas. Awad, acted without authority in making this trade; but plaintiff unquestionably had the right and authority to ratify his acts in making the...
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