Gulf Refining Co. v. Travis

• Decision Date: 05 May 1947
• Docket Number: 36281.
• Citation: 30 So.2d 398,201 Miss. 336
• Court: Mississippi Supreme Court
• Parties: GULF REFINING CO. et al. v. TRAVIS.

30 So.2d 398

201 Miss. 336

GULF REFINING CO. et al. v. TRAVIS.

No. 36281.

Supreme Court of Mississippi

May 5, 1947

Wilbourn, Miller & Wilbourn, of Meridian, John E. Green, Jr., of Houston, Tex., Welch, Cooper and Welch, of Laurel, and Green & Green, C. C. Richmond and Irwin W Coleman, all of Jackson, for appellants.

Lloyd Spivey, of Canton, Robert G. Gillespie, of Meridian, P. H. Eager, Jr. and Vardaman Dunn, both of Jackson, for appellee.

J. R. Buchanan, of Laurel, amicus curiae.

SYDNEY SMITH, Chief Justice.

This suggestion of error is filed only on behalf of Gulf Refining Company, and challenges our former decision only insofar as it cancelled the mineral lease executed by G B. Travis to the appellant. More narrowly, and in the language of the suggestion of error itself, 'The sole point to which this suggestion of error is directed is the one as to ratification vel non of appellant's lease. No other matter will be presented or discussed herein. If, on this record, appellant's lease was ratified or adopted by appellee, then it follows the decree of the lower court as to Gulf Refining Company should be reversed and judgment rendered in this Code in its favor.'

This statement of the scope of this suggestion of error limits its complaint to the ratification vel non by the appellee of the execution of this lease to it by G. B. Travis and this opinion should and will be so limited.

The errors claimed by the appellant to appear in our former opinion will be set out and considered seriatim:

'(1) In assuming that G. B. Travis was an agent and that the principles applicable to the ratification of acts of an agent by a principal are controlling.'

In their brief filed when this case was originally submitted for decision counsel for the appellant discussed their claim that the appellee was without the right to challenge the validity of this lease under a headnote reading as follows 'Appellee under the facts and the law ratified, approved and acquiesced in said lease and is estopped to dispute or question it by his conduct in accepting and retaining delay rentals thereunder after knowledge of facts and circumstances from which he knew or should have known that same were being paid under claim of ownership of such lease for the purpose of continuing it in full force and effect.' Under this heading follows a mixed discussion of both ratification and estoppel, although the difference between the two was pointed out by a quotation from 19 Am.Jur., p. 637, as follows 'Ratification differs from estoppel in essential particulars, although the distinction has not always been kept by the courts. The substance of estoppel is the inducement to another to act to his prejudice. The substance of ratification is confirmation after conduct. Ratification is a matter of intention, its existence is a question of fact; in order that there be a ratification there must be a voluntary assumption of the unauthorized act either on full information or on less than full information if undertaken deliberately in disregard of the fact that all knowledge of the transaction available has not been obtained. It does not rest upon prejudice. It has been stated that the distinction between being bound by reason of ratification and being bound by an estoppel is that in the former case the party is bound because he intended to be; in the latter he is bound notwithstanding there was no such intention, because the other party will be prejudiced and defrauded by his conduct unless the law treats him as legally bound.' (Italics ours.)

Ratification is a technical term peculiar to the law of agency, 1 Tiffany Real Property, 2d Ed., p. 683, though sometimes loosely used in other connections and is defined as 'the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account, whereby the act, as to some or all persons, is given effect as if originally authorized by him.' 1 Rest., Agency, Sec. 82; 1 Mechem on Agency, 2d Ed., Sec. 347; 2 Am.Jur., Agency, Sec. 208; 2 C.J.S., Agency, § 34.

The contention of counsel for the appellant that the lease here in question has been ratified by the appellee, presupposes that in executing it G. B. Travis, though without authority to do so, acted as the agent of some one to whose right to ratify it the appellee has succeeded, thereby invoking the law of agency, by which to determine their claim to the validity of the lease. We, therefore, did them no injustice in meeting them on the ground, and using the weapon, selected by them--the law of agency--for the decision of this branch of this controversy. This was the most courteous way to deal with the case as presented by counsel, but we would have reached the same conclusion we did had we pointed out, as counsel now do, though continuing to invoke the law of ratification, that since G. B. Travis did not claim to be acting as the agent of any one in executing this lease but executed it in his own name and of his own right, the law of ratification has no place here. 1 Rest., Agency, Sec. 85.

One may adopt or acquiesce in a contract affecting his property made by another who acted when making it in his own behalf and in his own right by an express or implied agreement so to do with the other party to the contract, but the result thereof is not the ratification of the original contract. Ratification of the unauthorized contract of another affecting one's own interest breathes life into it back to and from its inception, and makes the one ratifying it a party thereto. While in the case supposed the rights of the parties are determined not by the unauthorized contract but by the new agreement relative thereto. How this new agreement must be made when real property is involved will appear later herein.

The second and third errors said by the appellant to appear in our former opinion may be considered together. They are:

'(2) In concluding on the facts of this record that appellee, when he accepted and retained the delay rentals paid by appellant, did not have full and complete knowledge of all the material facts.

'(3) In overlooking the fact that when appellee knew when he accepted and retained said rentals was the equivalent of full and complete knowledge.'

Whether the appellee knew that a portion of the land embraced in the lease executed to the appellant by his father G. B. Travis belonged to him when he cashed the delay rental checks given his father and mother in accordance with the lease, was a question of fact for the decision of the Court below. The record contains no direct evidence that he did know this, but only circumstantial evidence indicating that he probably did know it and also that G. B. Travis was without authority to include the land in the lease. The appellee, however, when testifying on his own behalf under rigid cross-examination denied any such knowledge, which testimony the Court below had the right to, and did, believe, and we are unable to say 'acting judicially' that it was manifestly wrong in so doing.

The fourth error said by the appellant to appear in our former opinion is: '(4) In overlooking the fact that if it were correct to say that appellee did not have full and complete knowledge when he accepted and retained said rentals, he deliberately chose to act upon the knowledge he then had without waiting for the report of his brother as to the investigation he testified he requested his brother to make, and must be held to his election.'

In other words, the claim here is that if the appellee was ignorant of the fact that his land was embraced in this lease executed by his father, that he was wilfully so. If such is the fact, he should be either charged with such knowledge or that he acted with all the knowledge he cared to have in the matter. There is nothing in the evidence to justify this conclusion. He may have been careless in what he here did, as his evidence indicated that he probably is in his business matters, but carelessness is not willfullness. And as will appear in the discussion of appellant's fifth complaint the knowledge vel non of the appellee of the facts just hereinbefore discussed is not determinative of the questions raised by this suggestion of error.

The fifth error said by the appellant to appear in our former opinion is: '(5) In not holding under the undisputed facts of this record that appellee deliberately recognized, adopted and ratified the appellant's lease, and having so done, was and is without right to question or repudiate it.'

This lease was executed for a term of ten years, and under Section 264, Code 1942, the statute of frauds, 'an action shall not be brought whereby to charge a defendant or other party * * * upon any contract for the sale of lands, tenements, or hereditaments, or the making of any lease thereof for a longer term than one year; * * * unless * * * the promise or agreement upon which such action may be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some person by him or her thereunto lawfully authorized in writing.' The appellant makes no claim that there is any written instrument, or writing of any character in this evidence, that complies with this statute. The only written instruments in the evidence that could be said to remotely bear thereon is the appellee's endorsement of the names of his father and mother to the delay rental checks and the receipts issued to the appellant therefor, which set forth the fact that the checks were issued in payment of delay rentals under the lease executed by G. B. Travis. There instruments, even if the character of the appellee's signatures thereto be left out of view, obviously do not comply with the requirements of ...