Whitney v. Bissell

• Decision Date: 16 February 1915
• Citation: 75 Or. 28,146 P. 141
• Parties: WHITNEY ET AL. v. BISSELL ET UX.
• Court: Oregon Supreme Court

146 P. 141

75 Or. 28

WHITNEY ET AL. v. BISSELL ET UX.

Supreme Court of Oregon

February 16, 1915

Department 2.

Appeal from Circuit Court, Jackson County; F. M. Calkins, Judge.

Action by O. D. Whitney and another against J. H. Bissell and wife. From a judgment for plaintiffs, defendants appeal. Affirmed.

This is a suit to foreclose a mortgage on about 10 acres of orchard land near Medford, Jackson county, Or., given by defendants to plaintiff O. D. Whitney to secure the payment of three promissory notes aggregating $7,500, a portion of which mortgage was assigned to defendant Parker. The trial court rendered a decree in favor of plaintiffs, and defendants appeal.

By their answer the defendants admit the execution of the notes and mortgage. For an affirmative defense they allege in effect that in the month of December, 1910, plaintiff Whitney was the owner of the premises and sold the same to defendants for $14,500, $3,000 of which was paid in cash, $4,000 by the conveyance of certain property in Minneapolis, Minn., subject to a mortgage of $700, and the balance by three promissory notes; that defendants at the time were sojourning in Florida and never saw the property until after the purchase, all the negotiations being conducted by correspondence through the mails and by telegraph with L. W. Zimmer and J. W. Dressler agents of plaintiff Whitney; that the defendants refused to purchase the property until plaintiffs advised them of the value of the products of the premises for the year 1910 that, in order to induce the defendants to make the purchase Whitney, through his agents, stated that the income from the property for that year was $3,000; but that the returns were not yet complete; that they should be $3,500 for 1911. It is alleged that the defendants relied on such information and purchased the property; that the representation was false and Whitney knew the same to be so; that the premises for 1910 returned no greater sum than $700, which is an average. The defendants aver that they only recently made the discovery of the fraud, and promptly notified plaintiff Whitney in writing that on account thereof they rescinded the contract, demanded the repayment of the $3,000, a reconveyance of the Minneapolis property, and the cancellation of defendants' notes. They offered to reconvey the premises to Whitney and account to him for the rents, issues, and profits during their incumbency. The reply denies the false representation. The circumstances of the transaction were about as follows L. W. Zimmer formerly resided in Minneapolis, Minn., and defendant Dr. Bissell was also from that city. Having heard of the former through mutual friends and having seen his advertisement, in November, 1910, Dr. Bissell wrote to him in regard to property near Medford. Zimmer inquired of J. W Dressler, a real estate dealer who had the orchard in question listed for sale. Dressler mentioned the Whitney orchard, and Zimmer wrote and recommended the same to Dr. Bissell, who answered asking numerous questions; among them, as to what the crop returns for 1910 had been. He afterwards requested the same information by wire, suggesting changes in the proposition. Zimmer consulted with Dressler and Whitney, and on December 13th sent Dr. Bissell the following telegram:

"Dr. J. H. Bissell, Sarasota, Florida: Your proposition acceptable, provided you agree to pay your first two notes in case you sell the orchard in the meantime. Income should be about $3,000.00 this year. Returns not in. Next year thirty-five hundred or more. Porter J. Neff, city attorney, Jackson County Bank, and I at your service. L. W. Zimmer."

Dr. Bissell accepted the proposition of sale on the basis set forth in the answer. During the negotiations Dressler and Zimmer, with the knowledge of Whitney, agreed to divide the commission of 5 per cent. on the sale equally. On January 9, 1911, a preliminary contract of sale was executed containing the following stipulation:

"It is further covenanted and agreed between the parties that L. W. Zimmer, who has negotiated this contract for the parties hereto and has acted as agent for the second party, shall be paid by the first party a commission of 5 per cent. upon the purchase of $14,500 to be received by him in full payment for his services for both parties hereto."

This agreement was signed by Whitney and by J. H. Bissell by Zimmer, as his agent. Afterwards the same was forwarded to Dr. Bissell and ratified and signed by him.

Gus Newbury, of Medford (B. F. Piatt, of Medford, on the brief), for appellants. Porter J. Neff, of Medford (Neff & Mealey, of Medford, on the brief), for respondents.

BEAN, J. (after stating the facts as above).

It is admitted that the statement of the returns for the crop of 1910 was greatly in excess of the amount realized, which was about $700. Whitney asserts that he did not furnish Zimmer with the information, but that he stated that he had not then received the returns from the fruit association of Medford which marketed the crop, and could not state the amount; that Zimmer, the agent of Dr. Bissell, was the authority for the representation. Zimmer testified positively that he obtained the information from Whitney. Dressler at first by affidavit corroborated Zimmer, but upon further consideration and reflection testified in substance the same as Whitney. According to our view of the case, this statement in regard to the proceeds of the crop of 1910 was made in behalf of plaintiff Whitney as an inducement to Dr. Bissell to make the deal. The latter, relying upon the representation, consummated the purchase of the fruit orchard. Plaintiff, having accepted the benefit of the contract negotiated by his agents, is not in a position to repudiate that part of the transaction by means of which the agreement was obtained. He cannot ratify the contract in part and repudiate it in part. When a principal elects to ratify any portion of an unauthorized act of an agent, he must ratify the whole of it. He cannot avail himself of such acts so far as beneficial to him and repudiate the remainder. La Grande National Bank v. Blum, 27 Or. 218, 41 P. 659; McLeod v. Despain, 49 Or. 536, 552, 90 P. 492, 92 P. 1088, 19 L. R. A. (N. S.) 276, 124 Am. St. Rep. 1066; Grover v. Hawthorne, 62 Or. 77, 96, 114 P. 472, 121 P. 808. It is stated in 31 Cyc. 1603, as follows:

"A contract induced by the fraud or misrepresentation of an agent while acting within the real or apparent scope of his authority cannot be enforced by the principal against the party misled even though the principal did not authorize the agent to act fraudulently or to misrepresent."

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