U.S. Fid. & Guaranty Co. v. Shirk

• Decision Date: 13 April 1908
• Docket Number: Case Number: 664 Ind Ter T
• Citation: 1908 OK 58,95 P. 218,20 Okla. 576
• Court: Oklahoma Supreme Court
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. SHIRK et al.

1908 OK 58

95 P. 218

20 Okla. 576

UNITED STATES FIDELITY & GUARANTY CO. v. SHIRK et al.

Case Number: 664 Ind Ter T

Supreme Court of Oklahoma

Decided: April 13, 1908

Syllabus

¶0 1. PRINCIPAL AND AGENT--Authority--Estoppel by Conduct. One who, by his conduct, has led an innocent party to rely upon the appearance of another's authority to act for him, will not be heard to deny the agency to that party's prejudice.

2. SAME--Ratification--Acceptance of Benefits. One who voluntarily accepts the proceeds of an act clone by one assuming, though without authority, to be his agent, ratifies the act, and takes it as his own, with all its burdens, as well as all its benefits.

3. SAME--Knowledge of Agent Imputed to Principal. The law imputes to the principal, and charges him with, all notice or knowledge relating to the subject-matter of the agency which the agent acquires or obtains while acting as such agent and within the scope of his authority, or which he may previously have acquired, and which he then had in mind, or which he had acquired so recently as to reasonably warrant the assumption that he still retained it.

Error from the United States Court for the Northern District of the Indian Territory; before William B. Lawrence, Judge.

Action on redelivery bond by John C. Shirk and Martha Goodwin against the United States Fidelity & Guaranty Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

Wilson & Davis and W. S. Stanfield, for plaintiff in error.

W. H. Kornegay, for defendants in error.

KANE, J.

¶1 This was an action commenced by the defendants in error, plaintiffs below, who, for convenience, will hereafter be called the plaintiffs, against the United States Fidelity and Guaranty Company, plaintiff in error, defendant below, who will hereafter, for convenience, be called the defendant, to recover on a redelivery bond given in a certain replevin suit, wherein John C. Shirk et al. were plaintiffs and Jeff Davis was defendant. When the property in controversy was taken under the writ of replevin. Jeff Davis as principal gave a redelivery bond with, as is contended by the plaintiffs, the United States Fidelity & Guaranty Company as surety. The plaintiffs in the replevin suit prevailed, and, being unable to recover possession of the property replevied or the value thereof from the principal, Jeff Davis, commenced this case to recover on the redelivery bond. The cause was tried to a jury in the court below which resulted in a verdict for the plaintiffs, and a judgment thereon was duly rendered. The defendant appealed from the judgment of the court below, assigning as grounds for reversal various errors.

¶2 The main question, though, argued in the brief, has to do with the signing of the redelivery bond. The defendant contends that it had two joint agents at Vinita authorized to execute and deliver indemnity bonds; that these agents were acting under a written power of attorney dated the 31st day of May, 1899, Whereby defendant did "constitute and appoint O. D. Neville and James B. Burckhalter, of the city of Vinita, Cherokee Nation, Indian Territory, to be its true and lawful attorneys in and for the Northern judicial district of the Indian Territory, for the following purposes, to wit:

"To sign its name as surety to and to execute, acknowledge, justify upon and deliver any and all stipulations, bonds, and undertakings given or required in any judicial action or proceeding brought or pending within the aforesaid district of the said territory. It being the intention of this power of attorney to fully authorize and empower the said O. D. Neville and James B Burckhalter to sign the name of said company and affix its corporate seal as surety to any or all of said stipulations, bonds, and undertakings, and thereby to lawfully bind it as fully and to all intents and purposes as if done by the duly authorized officers of said company with the seal of said company thereto affixed, and the said company hereby ratifies and confirms all and whatsoever the said O. D. Neville and James B. Burckhalter may lawfully do in the premises by virtue of these presents."

¶3 It is admitted by counsel for defendant in their brief that the redelivery bond was signed by the United States Fidelity & Guaranty Company by O. D. Neville, who was at that time one of two joint agents under the power of attorney, but they insist that O. D. Neville and James B. Burckhalter were jointly authorized to sign for the company, and the signature of the company by Neville alone was not binding.

¶4 The redelivery bond was lost, and could not be produced at the trial of the cause below, and secondary evidence was introduced to prove the contents thereof, as well as the form of the signature. Plaintiff also sought to establish the agency of Neville by oral evidence. The written power of attorney from which we quote above, and another written instrument executed on the 11th day of May, 1899, appointing Neville general agent of the defendant, were identified by Neville on cross-examination by counsel for defendant and by him introduced in evidence. The written instrument last referred to had the following clause:

"This is to certify that O. D. Neville, of Vinita, in the state of Indian Territory, the duly authorized agent of the above company, with full power to solicit and receive proposals for such fidelity, official contract, and judicial bonds as may be written by said company in the Indian Territory, to receive the premiums thereon and to issue such bonds of such company as are signed by the president, or first or second vice presidents and secretary or assistant secretary and sealed with the corporate seal, subject to all the rules and regulations, and to such instructions as may from time to time be given him by said company. Nothing herein contained shall in any way restrict or abridge the authority granted said O. D. Neville under the power of attorney given by this company to sign bonds."

¶5 Mr. Neville, in his testimony, seemed to be in doubt as to which authorization he was acting under when he executed the bond in this case, but he stated that he usually signed the bonds executed under his agency by signing the name of his principal by himself as agent, and that Mr. Burckhalter occasionally signed also. He was not sure whether Mr. Burckhalter signed the bond in this case with him; but he states that he thought he did. This evidence...