Fant v. Campbell

• Decision Date: 24 August 1899
• Citation: 58 P. 741,8 Okla. 586,1899 OK 71
• Parties: FANT v. CAMPBELL et al.
• Court: Oklahoma Supreme Court

58 P. 741

8 Okla. 586, 1899 OK 71

FANT v. CAMPBELL et al.

Supreme Court of Oklahoma

August 24, 1899

Syllabus by the Court.

The act of one who assumes to act for another, though without authority, may be ratified by the one for whom he assumes to act voluntarily accepting the proceeds or profits of such unauthorized act; and an instruction which tells the jury that, to amount to a ratification, the defendant must have expressly agreed by and with the plaintiff, or his duly and legally authorized agent, that such act of the agent was ratified and approved, does not correctly state the law, and is error.

Error from district court, Cleveland county; before justice James R. Keaton.

Plaintiff in error, D. R. Fant, who was the plaintiff in the court below, filed his petition and præcipe for summons against the defendants, J. Y. Campbell and J. M. Stovall, on February 1 1896, in the district court of Cleveland county, Okl stating a cause of action upon each of two promissory notes dated November 2, 1892,--one for $3,-155, and the other for $950,--both due in six months from date, with interest at 10 per cent. per annum from date, payable at the office of the International Loan & Trust Company, at Kansas City, Mo., and both executed by the defendants: That there were credits as follows on the larger note: "5--13--93, paid $1,000 on within note by Fish & Keck Company. June 26th, 1893, paid $1,000. August 23rd, 1893, paid by Fish & Keck Company $901.77. August 25th, by cash, $100." And on the smaller note there is a credit as follows: "Paid April 25th, by O. B. Trower, $418." And praying judgment for the balance due of principal on said notes, $685.23, with 10 per cent. interest on the principal sums from date until paid according to their terms. Defendant Stovall filed answer, denying the execution by him of said notes. The defendant Campbell filed answer, alleging that by the false and fraudulent representations of Fish & Keck Company, the duly-authorized and acting agents of and for the said plaintiff in the collection of said notes, he, relying on their misrepresentations, was induced to and did pay them for said plaintiff, to be credited on said notes, the sum of $4,419, in payments as follows, to wit: $1,000 on the 18th of May, 1893, $1,000 on the 12th day of May, 1893, $1,000 on the 26th day of June, 1893, $901.77 on the 23d day of August, 1893, $100 on the 2d day of September, 1893, and the further sum of $418 on the 25th day of April, 1893. There were other alleged defenses set up in defendant Campbell's answer and his amendments to such answer, but the defense of payment was the only defense relied on by him at the trial. Plaintiff filed verified reply, denying agency of Fish & Keck Company, and denying the payment of the last $1,000. The case was tried by the court and a jury at the October term, 1897, and resulted in a verdict for the defendants. Proper exceptions were taken during the trial and to the overruling of motion for new trial by the plaintiff, and he brings this case here for review, and asks that the judgment be reversed. Reversed.

C. L. Botsford and C. W. Brewer, for plaintiff in error.

Amos Green & Son, for defendants in error.

IRWIN J. (after stating the facts as above).

Several assignments of error are presented by plaintiff in error on which it is asked that this case be reversed, but we think it necessary to refer to but two, viz.: First. The error assigned on account of the third and fifth instructions given by the court to the jury. The third instruction is as follows: "And before either defendant can be bound for the payment of said notes, or either of them, or any portion thereof, the plaintiff must show by a preponderance of the evidence that such defendant either executed said note himself, or authorized and directed some one else to execute same for him; or that he, subsequently to the execution of said notes, accepted a portion of the consideration for which they were given, and expressly ratified the act of some other person in signing the name of such defendant to said notes." And the fifth instruction is as follows "It must appear by a preponderance of the evidence that he authorized and directed said defendant J. Y. Campbell to sign his (Stovall's) name to said notes, or that he, subsequently to the execution of said notes, accepted a portion of the proceeds derived by reason of the giving of same, and expressly ratified the act of said Campbell in signing his (Stovall's) name thereto. But, on the other hand, if you believe that there is a balance still due and unpaid on said notes, or either of them, and further find from the evidence, by a preponderance thereof, that the said defendant Stovall either authorized and directed said Campbell to execute said notes for him, said Stovall, or that he, subsequently to the execution thereof, accepted a portion of the consideration for which they were given, and expressly agreed to and with the plaintiff, or any duly and legally authorized agent of the plaintiff, that the act of the said Campbell in executing said notes for and on behalf of himself was ratified and...