Fort v. Coker

• Decision Date: 30 September 1872
• Citation: 58 Tenn. 579
• Parties: Fort v. Coker.
• Court: Tennessee Supreme Court

58 Tenn. 579

Fort

v.Coker.

Supreme Court of Tennessee.

September Term, 1872.

FROM HAMBLEN.

Appeal in error from Circuit Court, July Term, 1872. J. B. HOYL, J.

FORT, for Plaintiff in Error, with whom was J. B. HEISKELL, who said:

Coker & Co. attached the goods and other property of Spitzer & Co., which had been previously conveyed by Spitzer & Co. to secure R. K. Byrd, on endorsements to the amount of $10,000. Fort defended the suit for Spitzer & Co., and on the suggestion and by express instruction of T. J. Carlisle, the friend and agent of Byrd, and for the protection of Byrd, he replevied the property, signing Byrd's name as attorney. Byrd was afterwards informed of the facts, and it is insisted for the plaintiff in error that he ratified the act of Fort. It is on this point that the principal controversy arises--the plaintiff below insisting that there was only a conditional ratification on the part of Byrd. Now that condition, as put by Byrd himslf, is so singular in its terms, that it was hardly possible for the jury to have been controlled by it, but for the charge which gives it a controlling effect.

Byrd, in his testimony, says of a conversation about the bond, “I think I do remember that something was said about it, but I don't remember what was said. I told defendant that I had never given him any authority to sign the replevy bond for me or in my name. He and Carlisle then explained to me that it was done for my benefit, and that I could or would lose nothing by it. I said, well if it was done for my benefit, and I did not lose anything by it, I did not care pro or con for it. I may have told them to do the best they could with, or make the best defense they could in the case, but if I did I don't remember.”

Carlisle and Fort both put the conversation on a much more reasonable and probable basis. Carlisle says, “Byrd had asked him to protect his interest in this matter; that he told Fort to sign the bond, as it was to Byrd's interest for him to do so. He instructed him to sign Byrd's name. In December, 1866, Byrd, defendant and Carlisle met in a saloon, where everything that had been done was explained to him. He said that he was satisfied that he (defendant) and I, had acted in good faith. He said, in substance, that if what we had done was done for his interest, and that he was not to be made liable, he was satisfied.” If Col. Byrd had then objected to what had been done, defendant could have indemnified himself.

Col. Fort says of the conversation: “Col. Byrd wanted to know something about this new lawsuit, (the chancery suit of Coker's.) Carlisle explained to him all that had been done, including the execution of the delivery bond with his name to it. Carlisle told him that Spitzer & Co. had been stopped, and that the replevying of the property was necessary for them to carry on their business, and that the stoppage of their mill would seriously affect him. After a full explanation of everything that had been done, every step that had been taken, Col. Byrd said that he had no doubt but that we had done the best we could for his interest, and as we parted he said, well you will have to do the best you can and take care of my interest the best you can.”

In view of this state of the evidence, the judge charges, amongst other matters not objectionable, this: “If Byrd was not fully informed, or if when informed he ratified the act only conditionally, or in the event it done him no harm, then it would be such ratification as the law contemplates to bind him.”

This is the only point where the judge applies the law to the specific proof on this point. Here then were two witnesses stating the matter in this conditional way--Carlisle with some modification, but still in the form that it admitted of this construction--and the court tells the jury that such a ratification would not do. Now if this was the law, there can be no reversal for the cause of course. But if it is not law, there is error of the most serious character.

Is this law? Mr. Byrd is informed that the property has been released partly on the faith of his name. He is interested in its release, to enable his principals to go on, as the only way of saving the $10,000 for which he is surety. The property goes to his indemnity under the trust to Gillespie. It was a matter in which he was bound to act then. He could not temporize. He must repudiate the act then and have the property returned, or at least notify the court and the adverse party that he would not stand bound, or he must run the risk. He knew that lawsuits were not insured to him. He knew that it was not a game in which he could bind himself as security of a party if he was going to gain his suit, but not be surety if he was going to lose. Yet he states the condition in exactly that form. Heads I win, tails you lose. Yet Judge Hoyle states as clearly as he can in language, that such a condition is admissible, allowable, and will be the contract. Good faith and common business sense required a course entirely the reverse of this, and the law certainly does not permit such pandering in a double sense. The law requires him to stand upon the act or repudiate it. Judge Hoyle allows him to stand by it if it wins, to repudiate it if it loses. He should have told the jury, that when Col. Byrd heard that his name had been used and the property had been released, and while it was still in existence and in reach, it was his duty to adopt the act and take the consequences, or repudiate it and take the consequences; and that if he concluded to accept the benefit of the release of the property, he could not by saying that he would not be bound if the card did not win--hold himself bound and free, fast and loose. The jury seem to have had difficulty on the point, and ask further instructions; but he labors through the matter nearly approaching the correct solution, but finally is wrecked upon the ratification, “but not conditionally,” thus refering to this conditional ratification, with a condition that he was only to be bound if he won. Mere acquiescence was ratification, mere silence was ratification, estoppel as to the complainants, and he by express declaration was willing for it to stand, if he was to lose nothing by it. Now in point of fact it was no condition. Mr. Byrd is not a fool. He had the whole matter stated over to him. He as a business man judged of the balance of interest either way for himself, and he unquestionably said, well if it's for my interest, I'll stand it, in the sense of I am satisfied it is for my interest and I'll stand it. In another sense it is a ludicrous parody of business and sense and good faith.

See Story on Agency, 255, cited in Leeper v. Jones, Nashville, 1871, unreported, No. 200. If the party does not disavow as soon as the acts come to his knowledge, he makes the acts his own: 1 Par. on Contracts, 49, 50, cited in1 Hum., 294.

VANDYKE, COOKE & VANDYKE for Coker.

MCFARLAND, J., delivered the opinion of the Court.

L. J. & C. W. Coker, on the -- day of November, 1866, filed their attachment bill in the Chancery Court at Chattanooga, against Lewis Spitzer & Co., R. K. Byrd, and others, in which they charged that Lewis Spitzer & Co. were indebted to them, and had fraudulently disposed of their property; that a large amount of their property had been previously conveyed by said firm to one Gillespie, in trust to secure R. K. Byrd from loss on account of his indorsement for the firm. This deed was alleged to be fraudulent. An attachment was issued, and levied upon the property in question. Lewis Spitzer & Co. employed Tomlinson Fort, an attorney at law, to defend the cause for them, and they desired to replevy the property. Thos. J. Carlisle, who had been a member of the firm, and who was a friend of Byrd, and who in his testimony says he had been requested by Byrd to look after his interest in the matter of business with the firm, advised and directed Fort to sign Byrd's name to the replevin bond; and on the 1st day of December, 1866, a replevin bond was executed in the sum of $2,500. To this bond the name of R. K. Byrd was signed by Fort, as solicitor. The property upon this was released, and turned over, we infer, to Lewis Spitzer & Co. It does not appear that at this time Byrd had any knowledge of the pendency of the suit. He lived in an adjoining county, and was not served with process until the 16th of the same month.

The complainants in the cause prosecuted the same successfully, and recovered a decree against Lewis Spitzer & Co. for $1,372.51, and also, to satisfy the same, a decree was rendered on the replevin bond for the same amount; but in this decree the name of Byrd was omitted. No reason for this appears on the face of the record, but in proof in this case it appears that his name was intentionally stricken out of the decree, upon the assumption--which the complainants in the case seem to have admitted--that his name was signed to the bond without sufficient authority. There was no adjudication of this question, but his name simply omitted in the decree.

The complainants having, as they allege, failed to collect their decree, brought this...