Stearns v. Johnson

• Decision Date: 01 January 1874
• Citation: 19 Minn. 470
• Parties: THOMAS STEARNS v. EDWARD W. JOHNSON.
• Court: Minnesota Supreme Court

19 Minn. 470

THOMAS STEARNSv.

EDWARD W. JOHNSON.

Supreme Court of Minnesota.

Appeal by plaintiff from an order of the district court, Goodhue county, denying a new trial.

The action was to recover possession of the promissory note mentioned in the foregoing note, and the facts of the case were as therein set forth. On the trial the jury, pursuant to the direction of the court, returned a verdict for defendant.

D. A. Secombe, for appellant.

Wilder & Williston, for respondent, cited:

RIPLEY, C. J.

Upon the case as settled the following seems to be quite as applicable now as it was in respect of the former trial, viz.: "There is no foundation whatever in the evidence for disputing the fact that the moneys and note remaining unpaid for the mill purchase was the matter settled at that time, (November 1, 1866,) nor that a general settlement took place on that occasion; but the testimony of George H. Stearns tends to show that the general settlement of accounts took place immediately after the settlement of the mill purchase. The defendant's testimony tends to show that there was but one settlement, and that a general settlement, embracing the mutual accounts of the parties, including the mill purchase." Stearns v. Johnson, 17 Minn. 142, (Gil. 116.)

Said mill property had been sold for $6,000, on the eighteenth September, 1865. Defendant, as plaintiff's agent, had then received the price, viz., $1,500 cash, and three notes of that date, payable respectively at 6, 12, and 18 months thereafter, for $1,500 each, with interest. The last, not yet due, was still, on November 1, 1866, in defendant's possession and the two others had been paid to him. He therefore had received for plaintiff between $4,500 and $5,000 in cash. Said George H., according to his testimony, assuming to act for plaintiff, agreed to take, and did take, $3,800 in U. S. 7.30 bonds at 5¼ per cent. premium, as the equivalent of $4,000 cash, in full for this sum and the said note, which defendant was to retain as his own.

The following instruction was given at plaintiff's request, viz.: "(4) If the jury fail to find from the evidence that George H. Stearns was duly authorized by the plaintiff to make the alleged compromise and settlement, they must find a verdict for the plaintiff, unless they find from the evidence that the plaintiff neglected an unreasonably long time, under the circumstances, to repudiate the same."

The court also instructed the jury, at defendant's request, as follows: "(7) If the settlement was made as claimed by said defendant, the plaintiff, if he would repudiate it and claim the note, was bound to do so within a reasonable time after notice to him * * * of the settlement, and to give notice of such repudiation to said defendant. (8) If the jury find that the settlement was made on the first day of November, 1866, and notice thereof was promptly thereafter given by said agent to said plaintiff, * * * and no notice of repudiation was in any form given to said defendant by said plaintiff, until a day as late as March 21, 1867, such notice of repudiation was not within a reasonable time."

And the court declined to instruct the jury, at plaintiff's request, as follows: "(5) The question whether the plaintiff repudiated the settlement made by George H. Stearns in a reasonable time is, under the circumstances of the case, a question for the jury."

The case further shows that counsel for both parties having conceded that the settlement was made on the first day of November, 1866, and that notice thereof was promptly thereafter given by said agent to said plaintiff, and that no notice of repudiation was in any form given to said defendant by said plaintiff until as late as March 21, 1867, the court, of its own motion, charged the jury, "that as matter of law, (the above facts being conceded,) the plaintiff did not repudiate the settlement within a reasonable time after notice thereof, and that on that ground they must find a verdict for the defendant."

Assuming George H. Stearns' want of authority, and that his account of the settlement is the true one, we are nevertheless of the opinion that there was no error in the above instructions and refusals to instruct.

Where one acting for A. passed notes belonging to A. to B., in payment of a debt of A.'s, the court held "that if the fact of such transfer for such purpose, with all the attendant circumstances, became known to A., it was his duty, within a reasonable time thereafter, to repudiate the transaction, and disown it as unauthorized; and if he failed to do so, he would virtually ratify and adopt the act of his professed agent, and be bound by it.

"The rule is a very stringent one upon the principal in such cases, where, with full knowledge of the acts of his agent, he receives a direct benefit from them and fails to repudiate the acts. When the principal is informed of what has thus been done, he must dissent and give notice of his dissent within a reasonable time; and if he does not, his assent and ratification will be presumed." Brigham v. Peters, 1 Gray, 139, 147.

George H. Stearns accepted $4,000 in full for more than $4,500 in cash and a note for $1,500, presumably of some value. Was this a case in which the plaintiff, with full knowledge of the facts, received a direct benefit from his agent's action? His knowledge is admitted, both of the settlement and the reasons his son had for making it.

"Taking the plaintiff's own evidence in the most favorable light for him, it establishes that the settlement was a settlement of the matter of the mill purchase, and embraced in it the moneys paid to the defendant and the note for $1,500 (the value of which was not determined) in his hands and not then due; that the $4,000 in bonds were paid by the defendant as the consideration for the settlement, and in satisfaction of all matters embraced within it. There can be no doubt whatever, it seems to us, that * * * the settlement * * * was a settlement for moneys and property in the hands of the defendant as one subject-matter, and was one transaction, in which all claims of the plaintiff against the defendant, for moneys and property arising out of the mill transaction, were satisfied and discharged, and the property passed to the defendant....