Brong v. Spence

• Decision Date: 17 November 1898
• Docket Number: 8403
• Citation: 77 N.W. 54,56 Neb. 638
• Parties: HARRIET BRONG ET AL. v. THOMAS B. SPENCE
• Court: Nebraska Supreme Court

77 N.W. 54

56 Neb. 638

HARRIET BRONG ET AL. v. THOMAS B. SPENCE

No. 8403

Supreme Court of Nebraska

November 17, 1898

ERROR from the district court of Seward county. Tried below before BATES, J. Affirmed.

AFFIRMED.

Edw. C Biggs and J. J. Thomas, for plaintiffs in error.

G. H Terwilliger, contra.

OPINION

SULLIVAN, J.

Harriet Brong and Jacob Brong, by this proceeding in error, seek to reverse a judgment of the district court of Seward county rendered against them and in favor of Thomas B. Spence for the sum of $ 63.32. In his petition the plaintiff alleges that, under and pursuant to the terms of a contract between himself and the defendants, he furnished feed for one team, board and lodging for two men, and twenty-two days' labor to a contractor who was engaged in putting down a well on the farm of Harriet Brong. The defendants answered separately, denying the contract. The Brongs were husband and wife. They lived in Pleasant Dale. Mrs. Brong owned an eighty-acre farm, which she leased in 1894 to Thomas B. Spence. The well on the farm failing to furnish an adequate supply of water, Jacob Brong was instructed by his wife to cause it to be repaired. He proceeded to execute his commission, but, after consulting with Spence, was induced to wander outside of his authority and enter into a written contract with a man named Swain for a new tubular well. This agreement provided that Swain should receive seventy-five cents per lineal foot for sinking the well, be furnished with a sufficient supply of water to enable him to prosecute the work, and have his men boarded and lodged while the work should be in progress. Mrs. Brong read the contract and acquiesced in its terms, only upon being assured by her husband that Spence had agreed, in consideration of the new well being put down, to furnish board and lodging for the men, feed for the team, and furnish all necessary help. On the trial the defendants contended that such was the arrangement between Brong and the plaintiff. The plaintiff, however, denied it, and, upon substantially conflicting evidence, the jury, under proper instructions, resolved that issue against the defendants.

In the further consideration of the case, therefore, we proceed on the assumption that the board, lodging, horse feed, and labor were furnished at the request of Brong and under circumstances affording an implied promise to pay for the same. Was Mrs. Brong bound by the agreement between her husband and Spence? She undoubtedly ratified the contract with Swain with a full knowledge of its provisions. This, of course, included a ratification of the engagement in regard to furnishing water and boarding and lodging the men. To perform the obligations imposed by the Swain contract Spence was employed, with her knowledge and consent. She was, it is true, misinformed as to the arrangement between Spence and her husband, but that was not the plaintiff's fault, and we do not see why it should prevent him from recovering for services rendered and accommodations furnished for Mrs Brong's benefit and in fulfillment of the contract with Swain. In Hughes v. Insurance Co. of North America, 40 Neb. 626, 59 N.W. 112, this rule was laid down: "The acceptance by a principal of the fruits of an unauthorized contract made by his agent is a ratification of such agent's conduct, and said ratification relates back to the date of the performance of the act ratified, and the principal is bound by the effects thereof, and the results flowing therefrom, as much so as if he had himself performed the act." And in Bradford v. Peterson, 30 Neb. 96, 46 N.W. 220, it was said: "In a number of cases this court has held that where a husband constructs a house on the land of his wife, of which fact she has full knowledge, the agency of the husband will be presumed; in other words, the wife, by...