Neil v. Updike

• Decision Date: 31 October 1939
• Docket Number: 2117
• Citation: 55 Wyo. 53,95 P.2d 81
• Parties: NEIL v. UPDIKE
• Court: Wyoming Supreme Court

95 P.2d 81

55 Wyo. 53

NEIL v. UPDIKE

No. 2117

Supreme Court of Wyoming

October 31, 1939

APPEAL from the District Court, Weston County; HARRY P. ILSLEY Judge.

Action by O. C. Neil against Hugh Updike for amounts due on certain notes and foreclosure of a chattel mortgage, in which defendant filed two counterclaims. Judgment for plaintiff and defendant appeals.

Affirmed.

For the defendant and appellant, there was a brief and oral argument by Edward T. Lazear of Cheyenne.

The ratification of an agent's unauthorized act may be shown by bringing an action. 2 C. J. 160, § 226. But the principal must ratify the entire transaction. He cannot ratify in part and disaffirm in part. Wyckoff v. Johnson (S. D.) 48 N.W. 837; Kelley v. Isensee (N. D.) 233 N.W. 245; Drakeley v. Gregg, 19 L.Ed. 409; Jones v. Mutual Creamery Co. (Utah) 17 P.2d 256; Grayburg Oil Co. v. Powell, 26 S.W. 333; Waldheim & Co. v. Mitchell Street State Bank (Wis.) 265 N.W. 561; Litchfield Nat. Bank v. McBride (Ill.) 7 N.E. 348; First Nat. Bank v. Reed (Cal.) 244 P 368; Simpson v. Commission (Ohio) 173 N.E. 211; Doan v. Ball (Ky.) 285 S.W. 208; Vetesnik v Magull (Ill.) 180 N.E. 390; Title Company v. Reinhart (Kan.) 288 P. 549; Wharton v. Tierney-Toner Company (Wash.) 217 P. 998. The lower court erred in granting judgment for the plaintiff and in not recognizing the counterclaim of defendant for the sums paid on the notes. Neil, the plaintiff, seeks to recover the benefits of the transaction and yet escape liability for payment of any kind. The judgment below should be reversed, with directions to enter judgment in favor of defendant for the amount paid by Updike, that is the sum of $ 4,307.98.

For the plaintiff and respondent, there was a brief and oral arguments by E. E. Wakeman and Preston T. McAvoy of Newcastle.

If sufficient evidence appears in the record to support the judgment, it must be upheld. Huber v. State Bank, 32 Wyo. 357; Sims v. Southern Surety Company, 38 Wyo. 165; Bank v. Trust Company, 39 Wyo. 46; Bissinger & Co. v. Weiss, 27 Wyo. 262; Perko v. Rock Springs Commercial Company, 37 Wyo. 98. The underlying reason for the above rule is stated in Brown v. Citizens National Bank (Wyo.) 269 P. 40; Tendolle v. Oil Syndicate (Wyo.) 268 P. 185; Branson v. Roelofsz, 52 Wyo. 101. Testimony given by a witness at a former trial should be considered and given the same effect as though repeated in open court. 22 C. J. 443; Adams Express Company v. Ten Winkel (Colo.) 96 P. 818. Admissions made under oath are of great weight against the declarant, and throw on him the burden of showing a mistake. Jones on Evidence, 3d Ed., 1924, § 296. The judgment below is amply sustained by the evidence.

RINER, Chief Justice. KIMBALL and BLUME, JJ., concur.

OPINION

RINER, Chief Justice.

This is a proceeding by direct appeal from a judgment of the district court of Weston County. The action in that court was one by O. C. Neil as plaintiff there and respondent here against Hugh Updike as defendant and the appellant at bar, to recover the amount of $ 322.20 on each of nine promissory notes and the balance due on a tenth note after certain payments had been made, each and all of these obligations being dated July 15, 1931; and also to foreclose a certain chattel mortgage presently to be mentioned. These notes were each and all made payable to J. E. Mann, W. R. Humphrey, T. C. Garrott, and the plaintiff, "or bearer," as joint payees. Other than the plaintiff the payees at the time the action was instituted had died, and plaintiff claimed, as sole survivor and having possession of the notes, ready to surrender same upon their payment. All the notes were signed by the defendant, Updike, who in his answer admitted their execution and delivery to said payees and then set forth in his pleading four separate defenses and two counterclaims, upon which issue was joined by plaintiff's reply.

The trial was to the court without a jury, culminating in the judgment in favor of Neil for the amount due on the notes and directing a foreclosure of the above mentioned chattel mortgage, hereinafter described. This is the judgment of which complaint is now made in the instant proceeding. The material facts which need to be recited in order to understand the only question involved in this appeal are as follows:

Prior to July, 1931, the above named payees in said notes were the owners of a one-half interest in certain oil and gas leases upon sundry lands situated in Weston County, Wyoming. The appellant, Updike, then owned the other half interest. Included in these leases was one upon an eighty acre tract of land described as the South Half of the Southeast Quarter of Section 15, Township 46 North, Range 64 West of the Sixth Principal Meridian. These parties, said payees on the one hand and appellant on the other, were also equal joint owners of certain personal property consisting of oil well casing, drilling rigs and oil well equipment. During the early part of the year 1931 negotiations were undertaken between all these persons for the purchase by Updike of all the property, thus held by the payees aforesaid. Warren A. Garrott, a son of T. C. Garrott, one of the payees named as above, who himself resided at the time in Weston County, Wyoming, assumed to act as agent for said payees in these negotiations for the sale of their holdings, which were finally closed during the month of July, 1931.

Conveyances dated July 15, 1931, of the entire interests thus held by said payees, were executed by them in the State of Mississippi, where they were all then residents, and sent to a bank at Newcastle, Wyoming, to be delivered to Updike upon his making payment therefor, as agreed. Accompanying the conveyances were a series of notes, twenty-two in number, for the total sum of $ 6,000, and a chattel mortgage form, also dated July 15, 1931, upon the personal property, involved in the transaction, and drawn to secure the payment of said notes, notes and mortgage to be signed by Updike. The latter was to pay additionally $ 1,000 in cash, thus making a total payment in money and notes of $ 7,000 by him; and, according to the contention of respondent, Neil, he was also to assign to payees all his interest--which was then as indicated above, a half interest--in the eighty acre tract already specifically described. Appellant, however, claims in this litigation that his payment of $ 7,000, in cash and notes, was all that he was to turn over to said payees for the transfers of the latter's property aforesaid, i. e. that his action in that regard would "wipe the slate clean."

On July 27, 1931, the conveyances aforesaid were delivered to Updike, the cash payment of $ 1,000 was made by him, the twenty-two notes signed by him were delivered to the bank for transmittal to the payees aforesaid, and the chattel mortgage duly signed was acknowledged by him and delivered to the bank for record on behalf of said payees.

On July 28, 1931, the day following, Updike, for the recited consideration of "the sum of One Dollar and the further consideration that this instrument is received by the assignee named herein as full, complete and final settlement of any and all claims of every kind and nature which said assignee may have against this assignor," assigned to Warren A. Garrott, aforesaid, all of Updike's interest in the eighty acre tract hereinabove described. Subsequently and on or about September 16, 1931, Warren A. Garrott sold this eighty acre tract to the Federal Oil Company for the sum of $ 20,000.

It is apparent from the foregoing that the only question to be resolved here is whether the district court's judgment aforesaid, in favor of respondent Neil, is supported by substantial evidence, the underlying problem being, of course, whether the court was authorized to consider, as it did, that the assignment by Updike to Warren A. Garrott was required and given as a part of the consideration for the transfer by the aforesaid payees of the notes above mentioned of all their interests in the property they held to Updike, as claimed by plaintiff and respondent, or whether, as asserted by Updike, all the notes aforesaid were cancelled in consideration of that assignment being made. This problem, it is evident, is simply a question of fact, and there appear in evidence, among other things, as submitted to the trial court for its consideration thereon, the following:

Subsequently and on the 10th day of November, 1933, after payment for one of the twenty-two notes aforesaid had been made by Updike in full, in a written agreement with certain trustees in said instrument named, said agreement being duly signed and acknowledged by Updike, the said trustees in consideration of certain promises made therein by Updike, agreed to pay the remaining twenty-one notes due from him to "J. E. Mann and associates of Greenwood, Mississippi."

Thereafter and prior to the 16th day of November, 1934, J. E. Mann and the plaintiff below, O. C. Neil, brought suit in the district court of Weston County against Warren A. Garrott and the Federal Oil Company to have Garrott declared their agent in the transactions related above, concerning the eighty acre tract, and that they, the plaintiffs in that suit, be declared the owners of said tract, and for other relief. Trial of this suit was had on November 16th and 17th, also before the district court of Weston County. On November 17th Updike, as a sworn witness in the case, testified, as shown by the following questions and answers:

"Q Mr. Updike, there is a letter in evidence, dated January 29 1931, written by Mr. Garrott to Mr. Mann, Plaintiffs' Exhibit No. 10, in which he states as follows: 'Mr Updike also made a price on everything. Said he would give Seven Thousand Dollars for...