Moyle v. Congregational Soc. of Salt Lake City, 856

CourtSupreme Court of Utah
Writing for the CourtMINER, J.:
Citation16 Utah 69,50 P. 806
Docket Number856
Decision Date19 October 1897

50 P. 806

16 Utah 69



No. 856

Supreme Court of Utah

October 19, 1897

Appeal from the Third district court, Salt Lake county, A. N. Cherry, Judge.

Action by Oscar W. Moyle, as assignee of the Burton Gardner Company, a corporation, against the Congregational Society of Salt Lake City. Judgment for plaintiff. Defendant appeals.

Reversed and remanded.

Bennett, Harkness, Howat & Bradley, for appellant.

Oral testimony varying the written contract was not admissible. 1 Greenleaf on Ev. 15th Ed. Sec. 275; Ninmam v. Suhr, 91 Wis. 392; Washabaugh v. Hall, 56 N.W. 82; Northern Trust Co v. Hillgen, 64 N.W. 909; Calmelet v. Sichl, 67 N.W. 467; Gurney v. Morrison, 41 P. 192; Cliver v. Heil, 70 N.W. 346; Talbot v. Wilkins, 31 Ark. 411, 420; Hussman v. Wilke, 50 Cal. 250; Brown v. Thurber, 77 N.Y. 613.

Whether the agent did the acts from which it is claimed the authority should be inferred, is a question of fact for the jury, but what authority may be inferred from the facts proven, is purely a question of law for the court. Railway Co. v. Lamoreaux, 49 P. 152, 153; Edwards v. Dooley, 120 N.Y. 540, 551; Bickford v. Menier, 107 N.Y. 490, 499.

In order to bind the principal, it must appear that the act done by the agent was in the exercise of the power delegated, and within its limits. Blum v. Robertson, 24 Cal. 127, 141; Graves v. Horton (Minn.), 35 N.W. 568; 4 Thompson on Corp. secs. 4883, 4884, 4886.

Before there can be a ratification of an unauthorized contract made by the agent there must be full knowledge on the part of the principal of all the terms and conditions of the contract and an act of approval or adoption of the contract made upon ignorance or misapprehension of the facts will not be a ratification. Baldwin v. Burrows, 47 N.Y. 192, 212; Smith v. Tracy, 36 N.Y. 79, 86; AEtna Ins. Co. v. N.W. Iron Co., 21 Wis. 458; Bennecke v. Ins. Co., 105 U.S. 355, 360; Dupon v. Wetherman, 10 Cal. 354, 368; Brown v. Pouse, 104 Cal. 672; Pa., D. & M. Nav. Co. v. Dandridge, 29 Am. Dec. 543, 547; Field v. Small (Colo.), 30 P. 1034.

Notice to the agent to be notice to the principal must be given to him while acting in the course of his employment. 4 Thomp. on Corp. sec. 5221; Whitenbrock v. Parker, 102 Cal. 93, 101; Bank v. Cormen, 37 N.Y. 320; Houseman v. Association, 81 Pa. St. 256, 262; Satterfield v. Malone, 35 F. 445, 453.

Moyle, Zane & Costigan, for respondent.

When a party claims, receives and retains the property of another, knowing that it was obtained by an unauthorized use of his name, it is a ratification of the assumed agency, which evinces his assent to the contract or the wrong. The courts, however, have been careful, in the leading cases of that class, to note, as the precise ground of legal liability, the knowledge of the facts by the party appropriating the benefit. Murray v. Binger, 1 Keyes 107; Fitzhugh v. Sackett, not reported; Bank of Beloit v. Beale, 34 N.Y. 473, 475; Keeler v. Salisbury, 33 Id. 653; Farmers' Loan & Trust Co. v. Walworth, 1 Id. 446; Palmerston v. Huxford, 4 Den. 166, 168; Bolton v. Hillersden, 1 Ld. Raym. 224; Precious v. Abel, 1 Esp.350; Rimell v. Sarpayo, 1 Car. & Payne, 254; Bennett v. Judson, 21 N.Y. 238; Elwell v. Chamberlain, 31 Id. 611.

A principal cannot accept and enjoy the benefits of the bargain made by his agent, without at the same time adopting the instrumentalities by which the agent consummated it. Morse v. Ryan, 26 Wis. 356; Moss v. Rossie Lead Mining Co., 5 Hill 137; First Nat. Bank of Wellsburg v. Kimberland, 15 W.Va. 555; Fister v. La Rue, 15 Barber 323; First Nat. Bank of Trenton v. Badger Lumber Co., 54 Mo.App. 327; Goodwin v. Union Screw Co., 34 N.H. 378; Hyatt v. Clark, 118 N.Y. 563; Ceder v. Loud & Sons Lumber Co., 24 Am. St. Rep. 136, and note; 4 Thomp. on Corp. sec. 5303.

It is estopped from repudiating such acts of its officers. 4th Thomp. secs. 4930 and 5258; Lovett v. German Reform Church (N.Y.), 12 Barber 67, 81; Brown v. Wright, 25 Mo.App. 54.

And such is the case, even if the agent is acting against orders or instructions. 4 Thompson on Corporations, Sec. 4931.

MINER, J. BARTCH, J., concurs. ZANE, C. J., concurring in the result.


[16 Utah 73] MINER, J.:

This action was brought by the plaintiff, as assignee of the Burton-Gardner Company, against the defendant, for $ 11,012.85, alleged to be due the company for work done and materials furnished in the construction of defendant's church building. A trial was had before a jury, and a verdict rendered in favor of the plaintiff for the sum of $ 6,801.84 damages and $ 2,040.52 interest. Defendant appeals from the judgment.

By direction of the church, its building committee, consisting of O. J. Hollister, T. R. Jones, and L. E. Holden, with such duties as were implied by its name, on the 29th day of May, 1891, entered into a written contract with W. E. Barber & Co., a partnership consisting of W. E. Barber and William Milligan, whereby Barber & Co. agreed to [16 Utah 74] erect the church building under the direction and to the satisfaction of Warren H. Hayes, architect, and of the building committee of the church, according to the plans and specifications made by the architect, for the sum of $ 31,350. This contract was signed by W. E. Barber & Co. and the Congregational Church Society of Salt Lake City, by its building committee, O. J. Hollister, Chairman, and L. E. Holden and T. R. Jones, committee. The written contract provided that any alteration that might be required in the work shown or described by the drawings or specifications should be made by the contractor, upon the written order of the architect or building committee, and also provided for the manner of determining the value of work required to be done or omitted by changes, for the inspection of the work, and the rejection and removal of materials condemned by the architect or building committee. The contract also provided that the contractor should make no claim for additional work unless the same should be done in pursuance of a written order from the architect or building committee, with the price agreed for such work inserted therein, and that the contractor should not assign or transfer the contract, or any interest therein, without the written consent of the architect or building committee. For the faithful performance of this contract, Barber & Co. gave a bond to the church in the sum of $ 10,000, [50 P. 807] with W. S. Burton, W. G. Collett, and O. H. Hardy as sureties. W. S. Burton was president, director, and general manager of the Burton-Gardner Company, and Hardy was also a director. Barber & Co. proceeded to construct the building under the contract, the Burton-Gardner Company furnishing Barber & Co. the lumber and materials used in constructing the same. Mr. Collett did the plumbing and steam-heating work. Payments were made by the church by [16 Utah 75] checks drawn in favor of Barber & Co. All these checks appear to have passed through the hands of some of the bondsmen, as they have the indorsement of one or more of the bondsmen on them. The total payments made by the church to Barber & Co. prior to November 7, 1891, amounted to the sum of $ 18,906.50. Prior to November 7, 1891, some differences and disagreements arose between the church and Barber & Co., it being claimed that the work was not being done satisfactorily to the church; and on November 7, 1891, Barber & Co. assigned the church contract to W. S. Burton, by the consent of the building committee and the sureties on the bond, by writing indorsed upon said contract, of which the following is a copy:

"For a valuable consideration, W. E. Barber & Co., the contractors mentioned in the foregoing contract, do hereby bargain, sell, assign, transfer, set over, and deliver unto W. S. Burton the foregoing and within contract, and all the rights and privileges accruing and to accrue to said W. E. Barber & Co. thereunder; but this assignment and transfer is made and accepted and approved by the undersigned building committee, not for the purposes or with the intent of releasing, and shall not release, said W. E. Barber & Co. of or from any of the obligations of said contract, or from the full performance of the contract, or from damages already arisen or hereafter arising from non-performance of any of the terms and conditions of the contract, and shall not release the sureties on the bond given to secure performance by said W. E. Barber & Co. from their liability on said bond; and we, W. S. Burton and O. H. Hardy, two of the sureties aforesaid, consent to the foregoing. W. E. Barber & Co. W. S. Burton. O. H. Hardy.

"On the above understanding, approved by O. J. Hollister, T. R. Jones, L. E. Holden, Building Committee."

[16 Utah 76] Upon approval of this assignment the church drew a check to W. S. Burton, on account of contract, for $ 500, for which Burton gave the following receipt:

"Salt Lake City, Utah, Nov. 7, 1891. Received on account of Barber contract, advanced from last payment, five hundred dollars. W. S. Burton, Assignee."

After such assignment the work proceeded upon the building, and checks in payment therefor were drawn by Hollister, chairman of the building committee, in favor of W. S. Burton, until the death of Mr. Hollister, February 12, 1892. After Mr. Hollister's death, checks were drawn by Mr. Hawley, secretary of the church, by direction of W. S. Burton, in favor of the Burton-Gardner Company, except one drawn August 8, 1892, for $ 3,500, in favor of...

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