Hofgesang v. Silver
| Decision Date | 21 January 1930 |
| Citation | 232 Ky. 503 |
| Parties | Hofgesang v. Silver. |
| Court | United States State Supreme Court — District of Kentucky |
7. Appeal and Error. — Former opinion by Court of Appeals in same case constitutes the "law of case" on present appeal.
8. Appeal and Error. — Statement, in former opinion in same case by Court of Appeals, that if owner had accepted benefits of contract made on Sunday by concluding deal for sale of property negotiated by broker, it perhaps would have been ratification, did not preclude proof of ratification in some other way, since statement did not purport to prejudge any avoidance thereof that might be interposed, though former decision established that paragraph of answer stated good defense.
9. Pleading. — Where answer pleaded contract broker sued on for commission was executed on Sunday and therefore invalid, matter pleaded in amended reply of plaintiff, to effect that there had been ratification of contract by defendant, was not departure from original cause of action in violation of Civil Code of Practice, sec. 101, but plainly an avoidance of defense set up to defeat cause of action, as party can rely upon as many defenses as he may have, provided they be not inconsistent or mutually destructive as provided by Civil Code of Practice, sec. 113.
10. Sunday. — Where contract broker sued on for commission was not valid when signed because it was made on Sunday, but during its continuance as an offer it was submitted on secular day to person for whom it was intended, it was thereupon accepted and became binding contract, where broker reported to his principal on Monday that contract had been concluded with purchaser and was directed then to proceed towards its consummation, and services rendered by broker on Monday and work subsequently done at instance of principal was sufficient consideration to support ratification of contract.
11. Customs and Usages. — If amount of commission for selling property had not been specified in contract, the customary commission would have been recoverable by broker procuring sale.
12. Sunday. — Where owner made no suggestion at any time that he was repudiating any part of contract between owner and broker and between purchaser and owner, owner's acceptance of results of sale could not be disassociated from manner of achieving those results, and ratification was of whole contract, and not of part of it only, where principal directed broker to consummate deal.
13. Appeal and Error. — In absence of request for certain instruction, appellant is not in position to complain of its omission on appeal.
Appeal from Jefferson Circuit Court
HARDY & HARDY for appellant.
WILLIAM L. DOOLAN and DOOLAN & DOOLAN for appellee.
Affirming.
H.J. Silver instituted an action against J.C. Hofgesang, Jr., to recover compensation for services rendered as a real estate broker. A paragraph of the answer of Hofgesang alleged that the written contract, which he exhibited as the basis of the action, had been executed on Sunday. A demurrer to that particular part of the pleading was sustained, and a trial before a jury resulted in favor of the plaintiff. Upon an appeal to this court, the judgment was reversed upon the single ground that the court had committed an error in sustaining the demurrer to that part of the answer. Hofgesang v. Silver, 223 Ky. 101, 3 S.W. (2d) 185. The lower court was directed to overrule the demurrer and to permit a reply to be filed. Upon the filing of the mandate of this court, Silver filed a reply, and later filed an amended reply. The case came on for trial, and during the progress of the trial Silver tendered an amended reply pleading ratification of the contract by the defendant. An objection was interposed to the filing of the amendment, but the court overruled the objection and permitted the pleading to be filed. At the instance of the defendant, the case was then continued. On a later trial Silver again recovered a judgment for the commission claimed, and Hofgesang again appeals. The objection to the filing of the amended pleading raised a question of its sufficiency and was equivalent to a general demurrer thereto. Barbaroux v. Barker, 4 Metc. 47; Brady v. Peck. 99 Ky. 42, 34 S.W. 906, 35 S.W. 623, 17 Ky. Law Rep. 1356; Cincinnati N O. & T.P.R. Co. v. Smith, 165 Ky. 235, 176 S.W. 1013; Harlan Coal & Coke Co. v. Davidson, 203 Ky. 580, 262 S. W. 936; Standard Auto Ins. Association v. West, 203 Ky. 335, 262 S.W. 296; Shuey v. Hoffman, 224 Ky. 765, 7 S. W. (2d) 262. No responsive pleading was presented to the amended reply, and it was not traversed of record. If it was sufficient in law to constitute an avoidance of the defense interposed on account of the basic contract being signed on Sunday, then the court committed no error in permitting it to be filed, or in rendering judgment for Silver. The amended reply set forth that on September 21, 1925, immediately after the acceptance by B.F. Jarboe of the proposition which appellant had signed on the preceding Sunday, and again on September 22d, and again on September 24th, the defendant directed and authorized Silver to require Jarboe to proceed towards a consummation of the contract, directed and authorized an attorney to prepare the necessary conveyances for Jarboe, and thereby caused the preparation, execution, and acknowledgment of deeds to carry out the contract on secular days subsequent to the execution of the proposition. Silver had advised Hofgesang that his proposition had been accepted by Jarboe within the time fixed, and the defendant then and there promised to have prepared appropriate conveyances of his property and to close the deal as soon as the attorneys could report upon an examination of the title. It was averred that by such recognition, approval, and action, the original proposition, although signed on Sunday, had been duly ratified on secular days.
It is first insisted that there can be no ratification of a contract signed on Sunday unless the contract is in some way carried into effect. The rule is not so narrow as the argument assumes. Although the authorities are not harmonious, it has been held that an oral acknowledgment of the contract and a promise to perform is sufficient ratification thereof to make it binding. A contract executed on Sunday, and for that reason invalid under the statutes of the state where the act occurred, may be ratified on a secular day, either by performance or by a promise to perform. It is said that this view of the question is sustained by the weight of authority on the ground that it is the more reasonable rule. 25 R.C. L. sec. 27, p. 1434. The text-writers put a recognition of the binding effect of such a contract upon the same basis as its adoption, or the execution of some part of it. 3 Williston on Contracts, p. 2990, sec. 1707.
Ratification is a question of fact, and, as applied to contracts, it may be express or implied. Short v. Metz Co., 165 Ky. 320, 176 S.W. 1144; Stern v. Freeman, 4 Metc. 309. If some portion of a contract made on Sunday is carried out on a secular day, an implied ratification results; but, although no acts such as payment or execution of instruments are shown, an express ratification may be found in a promise to carry out the contract, or by directions to proceed to that end. Wren v. Cooksey, 147 Ky. 825, 145 S.W. 1116; Gooch v. Gooch, 178 Iowa 902, 160 N.W. 333, L.R.A. 1917...
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