Gunter v. Williams

• Decision Date: 24 February 1919
• Docket Number: 122
• Citation: 210 S.W. 136,137 Ark. 530
• Parties: GUNTER v. WILLIAMS
• Court: Arkansas Supreme Court

210 S.W. 136

137 Ark. 530

GUNTER v. WILLIAMS

No. 122

Supreme Court of Arkansas

February 24, 1919

Appeal from Sebastian Circuit Court, Fort Smith District; Paul Little, Judge; affirmed.

STATEMENT OF FACTS.

D. R Williams, doing business as Williams Brothers brought an action in replevin against John Gunter to recover an iron tank alleged to be of the value of $ 200. John Gunter filed an answer in which he denied that Williams was entitled to the possession of the tank and filed a cross-complaint against Williams for the recovery of certain valves, pipes and tubes, with the value and particular description of each article stated therein.

According to the testimony of H. A. McDonald, a witness for the plaintiff, he sold the iron tank to the plaintiff, together with some fittings and shaftings attached thereto and John Gunter gave him the authority to make the sale. He sold the tank to Williams for $ 75 and gave him a written bill of sale therefor as agent for John Gunter. He also procured the brother of John Gunter to sign the bill of sale. John Gunter had bought some old distilling property from the government together with the land on which it was situated. He carried McDonald down to view the property and appointed him as his agent to sell it. He pointed out some wooden tanks as well as the iron tank in question. Subsequently John Gunter went to the State of North Carolina on account of the illness of his father and while he was gone McDonald sold the two wooden tanks for the prices designated by Gunter and paid the price less his commission to the brother of Gunter. McDonald thinks that the defendant put the price of $ 100 on the iron tank but before he sold the tank to Williams, McDonald went to the defendant's son and asked him if his father had put any price on the iron tank and the son replied that his father had put a price of $ 75 on it just as it stood with the shaftings and other fixtures attached to the tank. McDonald then sold the tank to Williams with the fixtures attached for the sum of $ 75 and kept $ 25 as his commission and paid the remaining $ 50 to the brother of the defendant.

On cross-examination McDonald stated that he met the defendant on the street after he had returned from North Carolina and he complained that McDonald had sold the tank for $ 75 saying that he had put a price of $ 100 on it to him. McDonald told him that his son had stated that his father had left a price of $ 75 on the iron tank and the defendant did not deny that he had done this. The defendant made no complaint until a week or ten days after he came back from North Carolina and this was several weeks after the sale had been made. McDonald further stated on cross-examination that he had general authority from John Gunter to sell all of the property at the distillery and that Gunter had told him to sell anything there including the building and lot.

According to the testimony of D. R. Williams, he bought the iron tank and paid $ 75 for it on the 31st day of July, 1917. He did not remove the tank right away because he had no particular need for it and on about the 15th day of September John Gunter came into his office and complained about the sale of the tank. He said that McDonald hadn't gotten enough money for it and that he could sell it for $ 200. He offered Williams his money back, but the latter refused to take it saying that he had bought the property in good faith. Williams denied that he had gotten some of the property mentioned in the cross-complaint and stated that the property he did get was junk and not worth over $ 6; that it was attached to the tank when he bought it and was regarded as a part of the tank in the contract of sale; that Gunter had told him he had sold the pump to Leo Bercher.

According to the testimony of John Gunter he never appointed H. A McDonald to sell the distillery property for him. He only showed him the property and told him if he could find a buyer and he made a sale that he would pay McDonald for his trouble. He told McDonald the price of the small tanks was $ 20 each and the iron tank was $ 100; that he did not want to sell anything but the tanks and that nothing was offered for sale except the tanks and the pump which he himself sold to Leo Bercher for $ 25; that he went to North Carolina in July to attend the bedside of his father and remained with him until the 7th day of September, 1917; that his brother wrote him that McDonald had sold the iron tank for $ 75 and paid him $ 50; that he wrote back and asked what had become of the other $ 25 and that his brother replied that McDonald had kept it; that he repudiated the whole transaction and offered Williams his $ 75 back when he returned to Fort Smith; that he wouldn't have sold the property for $ 75 because he could get $ 150 or $ 200 for the tank alone; that as soon as he found out all the facts, he repudiated the transaction and offered Williams his money back; that his brother only represented him in running his barbecue stand and did not have any authority to sell the property in question.

According to the testimony of Hugh Gunter, a son of John Gunter, before the latter went to North Carolina he told the former that he could put a price of $ 75 on the iron tank just as it stood. McDonald went by to see him one day and asked him what price the defendant had put on the tank. Hugh Gunter took McDonald down and showed him the tank and told him that the defendant had put a price of $ 75 on it just as it stood and that he Hugh Gunter, could sell the tank for that price.

The jury first returned a verdict for the plaintiff and assessed the value of the property at $ 200. The court then told the jury that the plaintiff had all the property in his possession except the tank and that it was the duty of the jury to find the value of the tank alone in its verdict. Thereupon the jury retired and later brought into court a verdict for the plaintiff and placed the value of the tank at $ 175. The case is here on appeal.

Judgment affirmed.

T. S. Osborne, for appellant.

McDonald was not an agent of appellant to sell anything. If so, he could only sell the tank at the fixed price of $ 100. His acts were ultra vires and void and appellant did nothing to ratify the sales. He did not know of the sale until long afterwards and when he learned the facts repudiated the whole thing, which was his right and duty to correct a fraud. The verdict is against the law and the evidence, is excessive and the court erred in its instructions. 152 Iowa 291; 132 N.W. 417; 27 Am. & E. Ann. Cases, 1326, and note; 90 Ark. 104; 117 S.W. 1080; 38 Cyc. 1602; 47 Ark. 378; 1 S.W. 694 (697); 37 Ark. 164.

Harry P. Daily, for appellee.

Whether McDonald was the agent or not to sell, and was acting within the scope of his authority was settled by the jury under proper instructions. 103 Ark. 79. Any seeming error in instructions refused was corrected by others given on the court's own motion.

OPINION

HART, J., (after stating the facts).

It is first contended that the court erred in giving instruction No. 1 at the request of the plaintiff. The instruction is as follows: "The jury are instructed by the court that if John Gunter authorized the sale of this property and after McDonald had sold same ratified his action, plaintiff should recover, even if you should find that McDonald exceeded his authority in the first instance."

The instruction is not very happily framed, but this could have been met by a...