Daniels v. Brodie

• Decision Date: 14 February 1891
• Citation: 15 S.W. 467,54 Ark. 216
• Parties: DANIELS v. BRODIE
• Court: Arkansas Supreme Court

15 S.W. 467

54 Ark. 216

DANIELS v. BRODIE

Supreme Court of Arkansas

February 14, 1891

APPEAL from Jefferson Circuit Court, JOHN A. WILLIAMS, Judge.

On February 19, 1887, Daniels made a contract in writing with Brodie in substance as follows:

Brodie sold to Daniels a stock of general merchandise, as shown by an inventory attached, for four thousand dollars, and, for a certain rent, leased his store-house and fixtures for the term of two years. Brodie agreed "that he will not in any manner engage in the mercantile business daring said term of two years" in Jefferson county. Daniels agreed to pay the said sum of four thousand dollars, two years from the date of the contract, in goods of the same class and quality and at the same prices as set forth in said inventory, or at his option to discount the amount of the bill at 25 per cent off.

On 12th March, 1889, Daniels brought this suit, alleging that Brodie had violated the contract by becoming a partner in the firm of Sallee & Co., in Redfield in said county; that, during the period of the contract, that firm had made a net profit of $ 3000; that plaintiff would have made this profit if Brodie had not violated his contract. Brodie denied that he was a partner of Sallee & Co., and filed a counter-claim, alleging that the amount of goods delivered to him by Daniels was $ 1274.62 less in value than the contract called for. A reply to this counter-claim, denying every item thereof except $ 21.37, appears in the transcript, though not marked "filed."

The testimony showed that, upon plaintiff's electing to return the amount of goods stipulated, defendant appointed one Davis his agent to take an invoice of the goods. In defendant's absence the invoice was made, and Davis accepted them in his behalf. Defendant claimed that Davis had no authority to accept the goods, and that some of the goods were not of the quality and class called for by the inventory. He directed Davis to return certain goods. The rest he sold to Sallee & Co. Plaintiff admitted that the invoice, as accepted by Davis, was short $ 177.

The court refused to give this instruction asked by plaintiff viz.:

"Third. The jury are instructed, as a matter of law, that if a person adopts a transaction done in his behalf by an agent who had no authority to do it, he must adopt it in its entirety; he cannot adopt it in part and repudiate it in part. And if the jury believe, from the evidence, that Davis accepted for Brodie the goods offered him by Daniels in February, 1889 and that, when Brodie returned, he accepted and received a part of the goods so taken by Davis, then this was a ratification of the act of Davis, in accepting all the goods delivered to him by Daniels, and Brodie is bound thereby."

There was verdict and judgment for Brodie for $ 782.91.

Judgment affirmed and cause remanded.

N. T. White, S. M. Taylor and J. W. Crawford for appellant.

1. The court erred in refusing the third prayer asked for plaintiff. A principal cannot ratify in part and repudiate in part his agent's act. Bish. on Cont., sec. 1110 and cases cited; Sackett on Instr., p. 65, sec. 10 and cases cited; Benjamin on Sales, citing 19 L. J. Ex., 410.

2. Also, in refusing the fifth and sixth. Appellee clearly violated the spirit of his contract, if not its letter. The contract clearly conveyed the "good will," and it was a breach for Brodie to hold himself out as a partner of Sallee & Co.

M. L. Bell and J. M. & J. G. Taylor for appellee.

1. No answer was filed to the counter-claim, and defendant was entitled to judgment. 25 Ark. 86.

2. Brodie was not bound by the unauthorized acts of Davis. The agent's doing more than he is authorized will not vitiate what is properly done, if the two are separable; otherwise it will. Bish. on Cont., sec. 1095. Brodie only adopted such part of the transactions of Davis as he was bound to accept under the contract.

3. The profits sought to be recovered by Daniels, under the fifth and sixth instructions, are too contingent and speculative in their nature to be considered. 7 Hill, 62; Wood's Mayne on Dam., sec. 56; Sedgw. Dam., p. 72; 39 Ind. 260; 2 Kernan, 277.

4. The sale did not include the "good will." Bish., Cont., sec. 520. The refusal of the fifth and sixth instructions did not prejudice appellant. 50 Ark. 68; 3 Pars. on Cont., 179.

OPINION

HEMINGWAY, J.

The grounds urged for a reversal arise out of the court's refusal to charge the jury as requested by the plaintiff. The charge given, as well as the prayers refused, relate to two different matters--the claim of the plaintiff and the counter-claim of the defendant. Without reciting in detail the rejected prayers, it is sufficient to announce our views on the questions involved.

The defendant obligated himself not in any manner to engage in the mercantile business in Jefferson county for two years. If he engaged in such business during the term specified, either as a sole trader, or as partner in the firm of Sallee & Co. he is liable to plaintiff in damages for the injury the latter sustained by reason of that business. If in fact he did not engage in such business, but did cause it to be believed among the prospective customers of plaintiff that he was a partner in...