Gunter v. Williams , 137 Ark. 530 ( 1919 )

HART, J.,

(after stating the facts). It is first contended that the court erred in giving instruction No. 1 at the request of the plaintiff. The instruction is as follows : ‘ ‘ The jury are instructed by the court that if John Gunter authorized the sale of this property and after McDonald had sold same ratified his action, plaintiff should recover, even if you should find that McDonald exceeded his authority in the first instance.”

The instruction is not very happily framed, but this could have been met by a specific objection to it. Having made no complaint in the court below on this account, the defendant is in no attitude to complain here.

His chief objection, however, to the instruction is that there was not sufficient evidence in the record upon which to predicate an instruction on ratification. We do not agree with counsel in this contention. According to the testimony of McDonald the defendant made him his agent to sell the property involved in controversy. The defendant himself admits that he put a price on the property and was to pay McDonald for his trouble in assisting him in case he made a sale of the property himself. Be that as it may, under the evidence of McDonald the jury was warranted in finding that he was the agent of the defendant for the sale of the property. An agent acting in excess of authority is a very different thing from one acting in the absence of all authority. Hence in considering whether the facts and circumstances of a particular case are sufficient evidence of a ratification, the distinction has been made between the unauthorized act of an agent, where the relation of principal and agent already exists, and that of a mere volunteer or stranger. In the former ease it is said that an intention to ratify will always be presumed from the silence of the principal after being informed of what has been done on his account, while in the latter case it has been said that there exists no obligation to repudiate the transaction, nor will silence be construed into a ratification. Dierks Lumber & Coal Co. v. Coffman, 96 Ark. 505.

The jury might have found from the evidence that McDonald sold the tank together with the pipes and other ’things attached to it to Williams on the 31st day of July, 1917, and gave him a written bill of sale therefor; that this was done after the defendant’s son had told McDonald that the defendant had placed a price of $75 upon the tank as it stood; that Williams paid the purchase price of the tank and that McDonald retained a commission of $25 and paid the balance to the defendant’s brother. The defendant by letter was apprised of this fact and instead of repudiating the transaction he wrote and asked his brother what had become of the other $25. It was not until about the middle of September when he had been home a week or ten days that he attempted to repudiate the transaction. He had knowledge of all the material facts when the sale was first made. The question of whether or not McDonald was to have a commission out of the sale from the defendant was one that did not concern the plaintiff as purchaser. Gunter knew that he had placed a price of $100 upon the tank in his conversation with McDonald. He knew that McDonald had sold the tank for $75. He knew that he had put a price of $75 on the tank to his son. At least the jury might have found this to be true from the testimony of his son. His chief objection to the sale at the time seems to have been that all the money was not paid to him. Hence under all the circumstances we think there was sufficient legal evidence upon which to submit to the jury the question of ratification of the sale hy the defendant. According to the defendant’s own testimony (and this seems to have been all the testimony on the subject) he could have sold the tank for $150 or $200. This testimony was sufficient to warrant the jury in finding the value of the tank to be $175.

It is contended that the court erred in giving instruction No. 2. The instruction reads as follows:

“If you find that McDonald was the general agent to sell the property at the old distillery, then Gunter is bound by all his acts within the apparent scope of his authority. ’ ’

It is claimed that there is no testimony upon which to base this instruction. We do not agree with counsel in * this contention. McDonald testified in positive terms that he had general authority from the defendant to sell all of the property at the distillery.

It is next contended that the court erred in giving instruction No. 3 at the request of the plaintiff, which is as follows: “If you find from the evidence that John Gunter sold the pump to Leo Bercher and that Bercher is the owner of the same, then Gunter is not entitled to recover same.”

There was no error in giving this instruction. According to the testimony of the defendant himself (which was all the evidence there was on the subject) he had sold the pump to Leo Bercher. Assuming that to be true, he is not concerned with who has possession of the pump. It does not belong to him. If it belongs to Bercher, that is a question that does not concern the defendant. The defendant could only be interested in recovering his own property. He does not show that he had any special ownership in the property which would entitle him to recover possession of it from the plaintiff.

It is next insisted that the court erred in refusing to give instruction No. 1 asked by the defendant. The instruction is as follows: “The burden of proof is on the plaintiff to prove by a preponderance of the evidence that McDonald was the agent of John Gunter, the defendant, to make a sale of the tank and property involved in this action, and before yon can find for the plaintiff you must so find that such authority was given.”

' There is no error in refusing to give this instruction. It takes from the jury all consideration of the question of ratification of the sale and makes it its duty to find for the defendant unless it should find that the plaintiff had authorized McDonald to make the sale of the tank. One who has not asked a proper instruction on the subject cannot complain of the ruling of the court in refusing the instruction as asked. West. Union Tel. Co. v. Ford, 77 Ark. 531; Horton v. Jackson, 87 Ark. 528; Holmes v. Bluff City Lbr. Co., 97 Ark. 180; Hays v. State, 129 Ark. 324, and McCain v. State, 132 Ark. 497.

It is also contended that the court erred in refusing to give instruction No. 2 asked by the defendant. The instruction is as follows: “If you find that McDonald exceeded his authority in making said sale, and the defendant, John Gunter, repudiated the transaction within a reasonable time after he learned all the facts in the case, the defendant had a right to repudiate the transaction and the same would not be ratified, although a part of the purchase price may have been deposited to Gunter’s credit. And if you find that Gunter repudiated said sale within a reasonable time after he learned all the facts in the case, and that McDonald exceeded his authority, it is your duty to find for the defendant.”

The court did give instruction No. 1, which is as follows : “If the jury find that McDonald exceeded his authority in the sale of this property and that Gunter on learning all the facts in connection with the same repudiated the transaction and tendered hack the purchase money within a reasonable time, you should find for the defendant. ’ ’

A comparison of the two instructions will show that essentially all the matters embraced in instruction No. 2 asked for by the defendant are embraced in instruction No. 1 given on the court’s own motion.

We find no prejudicial error in the record and the judgment will be affirmed.