Sullivan v. Idaho Wholesale Co., Inc.
| Decision Date | 01 October 1926 |
| Citation | 43 Idaho 149,249 P. 895 |
| Parties | ED. SULLIVAN, Respondent, v. IDAHO WHOLESALE COMPANY, INC., a Corporation, Appellant |
| Court | Idaho Supreme Court |
STATUTE OF FRAUDS-EXCEPTION FROM-CORPORATIONS-AUTHORITY OF OFFICER TO ISSUE CHECK-CORPORATION BOUND BY OFFICER'S ACT.
1. Defendant's promise to pay rent due plaintiff by another in consideration of plaintiff's desisting from suing tenant and attaching goods in his store, for some of which he owed defendant, and which defendant thereupon removed from the store, was excepted from the statute of frauds (C. S sec. 7976), as an original obligation, within section 7977, subd. 3, being on a consideration beneficial to defendant.
2. Evidence held sufficient to establish that corporation's office manager and credit-man had authority to draw and issue its check, in absence of president, especially in view of its failure to call officers to testify to contrary.
3. Where party deals with corporation in good faith, unaware of any defect of authority or other irregularity on part of those acting for it, with apparent authority, in issuing check, for which he releases and discharges another, to its direct benefit, it is bound.
APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. A. H. Featherstone, Judge.
Action for debt. Judgment for plaintiff. Affirmed.
Judgment affirmed. Costs awarded to respondent.
H. J Hull, for Appellant.
The agreement, if any there was, of the appellant to pay Newton's debt was a promise to answer for the debt, default or miscarriage of another and some note or memorandum thereof, signed by appellant, was necessary to its validity. (C. S., sec. 7976; Kerr v. Finch, 25 Idaho 32, 135 P. 1165; Houser v. Hobart, 22 Idaho 735, 127 P. 997, 43 L. R. A., N. S., 410.)
The agreement, if any there was, was a collateral agreement and within the statute of frauds. (C. S., sec. 7977; Frohardt Bros. v. Duff, 156 Iowa 144, Ann. Cas. 1915B, 254, 135 N.W. 609, 40 L. R. A., N. S., 242.)
The note or memorandum required by C. S., sec. 7976, must show the terms of the agreement on its face without the aid of extrinsic evidence. The check was not a sufficient memorandum to satisfy the statute. (Houser v. Hobart, supra; Blumauer-Frank Drug Co. v. Young, 30 Idaho 501, 167 P. 21; Seder v. Grand Lodge A. O. U. W. of North Dakota, 35 Idaho 277, 206 P. 1052.)
The memorandum required, if not sufficient to satisfy the statute, is inadmissible in evidence. Extrinsic evidence in aid of it is inadmissible. (Kerr v. Finch, supra; Houser v. Hobart, supra.)
A corporation, in the absence of an estoppel or ratification, is not bound by the acts of its agents or employees performed in excess of their apparent authority. (2 C. J. 468; T. W. & L. O. Naylor Co. v. Bowman, 39 Idaho 764, 230 P. 347; Cleveland C. C. & St. L. v. Shea, 174 Ind. 303, 91 N.E. 1081.)
John L. Fitzgerald, for Respondent.
Failure to call material witnesses was a circumstance which the jury might consider mitigating against defendant's contentions. (Indiana Union Traction Co. v. Scribner, 47 Ind.App. 621, 93 N.E. 1014; Tegels v. Great N. Ry. Co., 120 Minn. 31, 138 N.W. 945; Bryant v. Lazarus, 235 Mo. 606, 139 S.W. 558; Shoudy v. Reeser, 48 Mont. 579, 142 P. 205; Fonda v. St. Paul City Ry. Co., 71 Minn. 438, 70 Am. St. 341, 74 N.W. 166; Federal Trust Co. v. Allen, 110 Kan. 484, 204 P. 747.)
Where the instructions are not brought up, it will be conclusively presumed that the court properly instructed the jury; and the verdict will not be disturbed. (Wright v. Stewart, 32 Idaho 490, 185 P. 69; McLeod v. Rogers, 28 Idaho 412, 154 P. 970; Gumaer v. White Pine Lumber Co., 11 Idaho 591, 83 P. 771; Hopkins v. Utah Northern R. Co., 2 Idaho 277, 300, 13 P. 343; Johnson v. Johnson, 85 Wash. 18, 147 P. 649.)
The agreement was binding upon the defendant if Emanuelson had apparent authority to enter into it for the defendant. ( Hammitt v. Virginia Mining Co., 32 Idaho 245, 181 P. 336; Brace v. Northern Pacific Ry. Co., 63 Wash. 417, 115 P. 841, 38 L. R. A., N. S., 1135.)
The act of the defendant's agent Emanuelson was binding upon it, even though he had exceeded his authority, because the defendant took advantage of it by retaining its benefits, and failed to place plaintiff in statu quo. (Pettingill v. Blackman, 30 Idaho 241, 164 P. 358; Blackwell v. Kercheval, 27 Idaho 537, 149 P. 1060; Rowley v. Stack-Gibbs Lbr. Co., 19 Idaho 107, 112 P. 1041; Valley Lbr. Co. v. McGilvery, 16 Idaho 338, 101 P. 94; T. W. & L. O. Naylor Co. v. Bowman, 39 Idaho 764, 230 P. 347; First National Bank of Wallace v. Callahan Min. Co., 28 Idaho 627, 155 P. 673.)
The agreement is valid although not in writing because Newton was thereby discharged from his obligation, plaintiff accepting defendant's promise as a substitute therefor. (C. S., sec. 7977, subd. 3; McCallum v. McClarren, 15 Idaho 374, 98 P. 200.)
The forbearance to sue and attach is a sufficient consideration within the meaning of the statute. (Jonesboro Hardware Co. v. Western Tie & Timber Co., 134 Ark. 543, 204 S.W. 418; Frohardt Bros. v. Duff, 156 Iowa 144, Ann. Cas. 1915B, 254, 135 N.W. 609, 40 L. R. A., N. S., 242; Grant v. Alfalfa Lumber Co. (Tex. Civ. App.), 177 S.W. 536.)
Plaintiff's forbearance to sue and attach was beneficial to the defendant within the meaning of the statute. (Lerch v. Gallop, 67 Cal. 595, 8 P. 322; Burr v. Cross, 3 Cal.App. 414, 86 P. 824; Fairchild v. Cartwright, 39 Cal.App. 118, 178 P. 333; McCormick v. Johnson, 31 Mont. 266, 78 P. 500; Carlson v. Barker, 36 Mont. 486, 93 P. 646; Fisk v. Reser, 19 Colo. 88, 34 P. 572; Emerson v. Slater, 22 How. 28, 16 L.Ed. 360; Davis v. Patrick, 141 U.S. 479, 12 S.Ct. 58, 35 L.Ed. 826; Moore v. McHaney, 191 Mo.App. 686, 178 S.W. 258.)
One Newton was indebted to respondent in the sum of $ 85 for rent for a certain store building located in the city of Wallace, and respondent was about to institute suit to recover the amount due and to attach the goods, wares and merchandise located in the store building and in Newton's possession, including certain merchandise theretofore sold by appellant to Newton.
Newton called up the office of appellant by telephone and communicated the facts above stated to one Emanuelson, who was the office manager and credit-man of appellant company. The president of appellant company was out of the city at the time and was not communicated with. Emanuelson, in the absence of the president, discussed Newton's situation with the company's auditor, a Mr. Davis and a Mr. Allen, its secretary, and a unanimous agreement was reached among them that the $ 85 be advanced by appellant company to pay the indebtedness due from Newton to respondent. Thereupon Emanuelson got in communication with the attorney for respondent by telephone and requested him not to institute the contemplated attachment proceedings and stated that if he would refrain from doing so the company's check in the amount of $ 85, due respondent for rent from Newton, would be delivered to the attorney. To this the latter agreed and later in the afternoon of the same day Emanuelson went to the office of the attorney for respondent and delivered to him a check for $ 85, in full payment of the rent due from Newton to respondent. The check was on the following morning deposited in the First National Bank of Wallace and by that bank in due course presented for payment to the Wallace Bank & Trust Company, where payment was refused in compliance with directions given to the last-named bank by the president of appellant company.
Further, there is evidence in the record to show that on the evening of the same day that the agreement heretofore recited was entered into by Mr. Emanuelson on behalf of appellant and Mr. Fitzgerald on behalf of respondent, appellant company, through its employees, removed from the Newton store goods to the value of approximately $ 100, or more than enough to satisfy respondent's claim, and that other creditors removed goods they had sold to Newton. This action was thereafter commenced by respondent against appellant to recover the $ 85. The case was tried to the court and a jury and resulted in a verdict in favor of respondent for the amount alleged to be due. This appeal is from the judgment.
Appellant seeks to reverse the judgment of the court below upon two principal grounds:
1. That the agreement to pay the amount due from Newton to respondent is within the statute of frauds, there being no note or memorandum thereof in writing and subscribed by the party charged or by its agent, and that evidence of the agreement cannot be received, and that the agreement is invalid under the provisions of C. S., sec. 7976.
2. That if the agreement does not fall within the provisions of C. S., sec. 7976, appellant is not bound thereby, for the reason that its agent had no authority to draw or deliver the check in payment of the indebtedness due from Newton to respondent.
Respondent contends that his right to recover falls within subdivision 3 of C. S., sec. 7977, and particularly the last clause of subdivision 3, providing substantially that where the promise, being for an...
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