Ireland v. Shukert
| Decision Date | 10 January 1944 |
| Citation | 177 S.W.2d 10,238 Mo.App. 78 |
| Parties | G. H. Ireland, Respondent, v. E. Shukert, Appellant |
| Court | Kansas Court of Appeals |
BLAND
On Rehearing.
After carefully considering this case we have concluded that the opinion of Cave, Judge, rendered upon the original submission, should be, and hereby is, adopted; but deem it proper to make the following observations, in view of the matters suggested in plaintiff's brief on rehearing.
It is claimed that defendant was the equitable owner of the ninety-nine year lease and, having received benefits by virtue of the execution of the guaranty, should be bound by the latter.
We are of the opinion that the fact, if it be a fact, that defendant had an equitable interest in the lease, should make no difference in the disposition of the case. Plaintiff, and the other noteholders, did not accept the guaranty and at no time gave up their rights in the matter of having the deed of trust foreclosed. The so-called guaranty, never having become effective, it cannot be said that defendant received any benefits under it. Benefits, in legal contemplation, cannot be based upon a contract nonexistent. The same answer is to be made to the contention that there was a consideration for the guaranty because, as it is claimed, Frederick H. McDonald received a benefit from it.
However it is stated that plaintiff ratified the act of Van Evera in causing the guaranty to be written. That ratification is shown by the acquiescence and affirmative action on the part of plaintiff. In this connection plaintiff says that there was evidence that he knew of the guaranty as early as 1931. Van Evera testified:
If this testimony can be said to amount to substantial evidence that plaintiff knew of the guaranty in 1931, it is contradicted by the testimony of plaintiff, himself, that it was first brought to his attention in 1937 by his attorney. Plaintiff is bound by his personal testimony. [McCoy v. Home Oil & Gas Co., 60 S.W.2d 715.] Plaintiff's wife, now deceased, owned one of the notes now held by him but there is no evidence that Van Evera notified her of the guaranty.
However that may be, the doctrine of ratification, as used in the connection with which plaintiff attempts to use it, is applied in cases where the principal is sought to be bound because he has ratified the acts of his agent done without the scope of the latter's authority. We do not hold that the principal, himself, cannot, in any case, rely upon his own conduct as well as formal acts to show that he had adopted the acts of his agent and thereby entered into a contract with the third party. However, that is not this case. In the first place, while, Van Evera had no authority to negotiate with defendant for a guaranty he did not attempt to enter into an unconditional contract of guaranty with the defendant. It was understood that the guarany would not be effective unless the noteholders accepted it. It was not to become a contract until this condition was fulfilled. Therefore, it was not, strictly speaking, a question of the noteholders accepting or repudiating the action of Van Evera. If they refused to accept it there would have been no question of repudiation of Van Evera's action involved, as Van Evera's understanding with defendant contemplated that there might be a refusal of the bondholders to accept. The bondholders were not put in the position of being obliged to accept or...
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Nolan v. Joplin Transfer & Storage Co.
... ... (Mo. App.), 128 S.W.2d 299, 303, 2nd col., Par. 4; ... Tunget v. Cook, (Mo. App.), 94 S.W.2d 921, 925, col ... 2; Ireland v. Shukert, (Mo. App.), 177 S.W.2d 10, ... 17. To recover respondent cannot rely on the testimony of his ... witness which directly conflicts with ... ...