Miller v. Fisher

• Decision Date: 02 January 1918
• Docket Number: 19805
• Citation: 116 Miss. 350,77 So. 151
• Court: Mississippi Supreme Court
• Parties: MILLER v. FISHER

77 So. 151

116 Miss. 350

MILLER v. FISHER

No. 19805

Supreme Court of Mississippi

January 2, 1918

Division A

APPEAL from the circuit court of Jackson county, HON. J. H. NEVILLE Judge.

Suit by Chas A. Fisher against T. J. Miller. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed.

Wm. D Bullard, for appellant.

In view of the testimony there can be no question of agency in this case, unless it can be shown that appellant made herself liable by some subsequent act, or in some way became responsible to appellee after the repairs were completed. There is nothing in the entire record to suggest agency or any manner of liability on the part of appellant, unless it is claimed that the letter dated Sept. 7, 1915, from Miller to Fisher and the check for one hundred and twenty-five dollars inclosed therewith operated in some way to make appellant liable for the alleged balance due from Dan Sherman to appellee. On page 5 of the record is a copy of this letter, as follows:

"Enclosed please find check for one hundred and twenty-five dollars for payment of work done on engine, hoping that same will reach you promptly, I beg to remain, Yours truly, T. K Miller."

This check was not sent as a part payment of a debt that Miller owed or had assumed, it was sent at Dan Sherman's request and was the remainder of the one hundred and fifty dollars which appellant agreed to advance Sherman for the repairs on the boat.

The court erred in refusing defendant's request for a peremptory instruction to find for defendant. The court also erred in inserting in the third line of defendant's second instruction after the word, "defendant," the words, "or an agent of defendant."

The fourth instruction given plaintiff is erroneous in that it submits to the jury the question of Sherman's agency when there was no evidence to warrant such an assumption of agency.

The fifth instruction given plaintiff is clearly erroneous. Not only is it wrong as matter of law but the language is misleading, to wit: "And the defendant, T. J. Miller, after the work was completed did pay the sum of one hundred and twenty-five dollars direct to Chas. A. Fisher, then and thereby the defendant ratified the acts of Mr. Sherman in making said agreement with plaintiff thereby becoming liable for the full amount of the debt."

"And the language is not cured by the closing sentence of the instruction. The case of Meyer, Weis & Co. v. Geo. C. Baldwin, 52 Miss. 263, is applicable here; also the authorities cited in brief of learned counsel for plaintiff in error. Under the facts in this case even if Miller had made the one hundred and twenty-five dollars payment voluntarially and not at Sherman's request, he would not have been liable for any remainder due Fisher because he was under no obligation to pay any part of the debt. Brown v. Rouse, 104 Cal. 672, 38 P. 507. Sherman was not acting for Miller and therefore the one hundred and twenty-five dollar payment could not operate as a ratification. 31 Cyc, page 1251, paragraph C and citations thereunder.

The sixth, instruction is also erroneous, because it leaves out the question of whether Miller, even if he made the payment "of his own account direct to the plaintiff," thereby intended to ratify Sherman's contract and himself become liable therefor. The intent to ratify must either be express or implied, and Miller's letter showed that he intended the one hundred and twenty-five dollars to pay in full Sherman's debt. 31 Cyc., p., 1260, par. H.

It is difficult to cite authorities under the facts in this case, and it is remarkable that the learned court below should have gone off on the theory that the question of agency, or the ratification of the unauthorized acts of a third person could be involved in it.

Denny & Heidelberg, for appellee.

As to the question of agency upon which counsel for appellant seem to build his hope for a reversal of this case it seems to us that there can be nothing but an affirmance of this case upon the record as stated above. Miller has a boat; he turns it over to Sherman to use; Sherman after using it for some time and ascertaining that it needs repairs goes to the appellee and enters into a contract with him for repairing the boat; there is disagreement between them as to the terms of this contract as to the amount of the price to be paid for said repairs, but we would call the court's attention to the fact that there is no disagreement, between them as to the terms and condition of any contract until it gets above the sum of one hundred and fifty dollars but we would call Counsel for appellant's attention to the fact that he has misunderstood the facts in this case if he thinks that Myer v. Baldwin, 52 Miss. 263, is an authority in this case. Why was appellant, in the letter that he wrote appellee when he sends him a check for one hundred and twenty-five dollars, saying that he hoped this check would reach appellee promptly, and that it was for "work done on engine," if to this it be added that on page 12 of the record near the center, appellee states that he did not extend any credit to Dan Sherman, and that Dan Sherman told him that it was not his boat but appellant's. Sherman asked for a ten days' trial of the boat after the work was completed; instead of this it was twenty days or more and then the check came in from appellant. The appellee had, he states, refused to do the work for Sherman and knowing that ordering work done upon same, he was, it seems acting as an agent of appellant, and upon that idea appellee did the work. He says on page 15: "He told me it was Mr. Miller's boat and I relied upon the fact that the boat was good for it. I had made investigation that Dan Sherman's credit would not be good for it and I could not extend that much credit to him and I accepted the work and did the work on the strength of the fact that I knew the boat belonged to Mr. Miller, a responsible man and was under the impression that the work done on the boat and the repair done on it would be a lien on the boat, and that was the reason I went ahead with it."

Now under this state of facts, does or would Miller have to know about this contract before he would be bound by the same? Sherman was his agent certainly to the extent that he let him have the boat, and use it and when it came to repairs Fisher was unwilling to repair the boat on Sherman's credit. Sherman said it was Miller's boat and came to appellee to repair same. If this...