Hample v. McKinney
| Decision Date | 28 June 1927 |
| Docket Number | 4698 |
| Citation | 258 P. 179,44 Idaho 435 |
| Parties | J. E. HAMPLE, Appellant, v. PETER MCKINNEY, Respondent |
| Court | Idaho Supreme Court |
AGENCY - ASSIGNMENTS - MATERIAL ALLEGATION - BURDEN OF PROOF-PRINCIPAL AND AGENT-UNAUTHORIZED AGENT-NO RATIFICATION OF ACT OF-APPEAL AND ERROR-EVIDENCE-PREJUDICIAL ERROR.
1. The complaint of assignee of the claim of J. W. & Co., alleging that defendant was indebted to "J. W. & Co., a copartnership," it was, as stated by instruction, a material allegation, the burden of proving which was on plaintiff, that there was such a party assignor.
2. It is no evidence of agency of O. in the obtaining of wool from defendant that a year before he had delivered money of W. for plaintiff to defendant.
3. That in ignorance of the facts the claimed principal enjoyed the benefits of the acts of an unauthorized agent, would not amount to a ratification.
4. Statements of claimed agent against claimed principal without proof of the agency are inadmissible, and their reception without such proof held prejudicial error.
APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. Ralph W. Adair, Judge.
Action for money had and received. Judgment for defendant. Reversed and remanded.
Judgment reversed and a new trial ordered. Costs to appellant.
L. E Glennon, for Appellant.
Where there is no substantial evidence to support the verdict a new trial should be granted. (Nelson v. Intermountain Farmers' Equity, 36 Idaho 518, 211 P. 550; Jones v. Bartlett, 36 Idaho 433, 211 P. 555; Studebaker Bros. Co. v. Harbert, 35 Idaho 490, 207 P. 587.)
The portion of Instruction No. 4 complained of was very harmful under the circumstances of this case and constituted such grievous error as should prompt the court to grant a new trial.
It clearly appears from the verdict in the light of the evidence that the jury was influenced and misled by the erroneous instruction. Where the court erroneously instructs the jury the verdict will be set aside even though supported by the evidence. (Mahaffey v. Carlson, 39 Idaho 162, 228 P 793; Drumheller v. Dayton, 29 Idaho 552, 160 P 944.)
E. H. Casterlin and Whitcomb & Cowen, for Respondent.
"The burden of proof to establish the affirmative of the issue involved in an action rests upon the party alleging the facts constituting that issue, and remains there until the end." (31 Cyc. 686.)
There was no shifting of the burden of this proof. (Allen v. Chicago, B. & Q. Ry. Co., 82 Neb. 726, 118 N.W. 655, 23 L. R. A., N. S., 278; note, 135 Am. St. 763.)
The evidence was ample to establish Oliver as being the agent of appellant in effecting the sale of the wool. Agency is presumed.
Benefits accepted without apparently making inquiry concerning the acts of the agent. (31 Cyc. 1257, notes 50 and 51.)
The partnership of appellant's assignor having been alleged, an issue joined thereon became a material allegation, and proof that it was a corporation constituted failure of proof. (Christian College v. Hendley, 49 Cal. 347; 21 Cal. Jur. 267; C. S., sec. 2724; Thompson v. Stetson, 15 Neb. 112, 17 N.W. 368; Weinreich v. Johnston, 78 Cal. 254, 20 P. 556.)
The testimony in this case is admittedly conflicting, but the jury believed and accepted respondent's understanding and explanation of the transaction, and returned a verdict in his favor. This should be conclusive so far as the evidence is concerned. (Gordon v. Sunshine Min. Co., 43 Idaho 439, 252 P. 870.)
Respondent, in 1920, sold or consigned to appellant, individually or as agent of Jerimiah Williams & Co., of Boston, Massachusetts, his wool clip, for which he received through the First National Bank of Dillon, either as the purchase price or as an advance, 25 cents per pound. The price of wool declining there occurred a deficit after the payment of freight, storage, commissions, etc., of $ 2,508.22, for which this action was instituted by appellant as assignor of Jerimiah Williams & Co., for such claim.
It is respondent's contention that the transaction was a sale to appellant through his agent Oliver, while appellant takes the position that the wool was consigned through him as agent without the intervention of Oliver to Jerimiah Williams & Co. Judgment on a verdict was entered for respondent and the appeal is from the order denying a new trial.
Appellant assigns as error the giving of the following portion of instruction No. 4:
"One of the material allegations of plaintiff's complaint is the allegation that Jerimiah Williams and Company was a co-partnership and this allegation must have been proven by a preponderance of the evidence, as well as all the other material allegations of said complaint."
Plaintiff, as assignee, had of necessity to show an assignor, and a cause of action in favor of such assignor assigned to plaintiff. The complaint alleged that "respondent was indebted to Jerimiah Williams & Co., a co-partnership"; that there was such a party assignor was a material allegation and the burden of proving the same was on appellant. (30 Cyc. 402, 586.) Appellant himself recognized this and assumed such burden by offering evidence responsive to such issue. The instruction was, therefore, not incorrect.
Defendant claimed that the wool was purchased by one Oliver, acting as agent for appellant. Appellant objected to such evidence on the ground that there was no proof of such agency and that he himself negotiated the purchase. There...
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