Brong v. Spence

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

56 Neb. 638

77 N.W. 54

BRONG ET AL.

v.SPENCE.

Supreme Court of Nebraska.

Nov. 17, 1898.

Syllabus by the Court.

1. A verdict rendered on substantially conflicting evidence, and approved by the trial court, will not be set aside on the ground that it is not sustained by adequate proof.

2. A principal who accepts the fruits of a contract made by an agent in excess of his authority is liable to the person with whom such contract was made, although misinformed as to some of its provisions.

3. One who assumes, without authority, to contract for another, is not personally liable in an action on such contract, unless he is within its terms.

4. Where two defendants join in a motion for a new trial, and also file a joint petition in error in this court, the judgment will be affirmed, unless the record discloses error prejudicial to both.

Error to district court, Seward county; Bates, Judge.

Action by Thomas B. Spence against Harriet Brong and Jacob Brong. Judgment for plaintiff. Defendants bring error. Affirmed.

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

G. H. Terwilliger, for defendant in error.

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 22 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 80-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 75 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., 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...