Stout v. Bolin , 101 Kan. 594 ( 1917 )

The opinion of the court was delivered by

Burch, J.:

This is a second appeal. The facts are sufficiently stated in the former opinion (Stout v. Bolin, 93 Kan. 185, 144 Pac. 204). At the second trial the court sustained a demurrer to the plaintiff’s evidence, and he appeals.

The district court evidently misinterpreted the following statement contained in the former opinion:

“Aside from whatever inferences are to be drawn from the facts and circumstances appearing from the evidence there is no testimony tending to show an agency, and certainly none indicating an agency to purchase the cattle on account of the defendants by the head and not by the pound.” (p. 188.)

The statement is still true. There was no testimony tending to show agency on the part of Brown, in the sense of conversations conferring authority. There were facts and circumstances, however, from which Brown’s agency might be inferred. Among them were statements made by the defendants to third persons. Hopkins said they (the defendants) had a man who sold the cattle for' them, and that they came out all right, had done well on the cattle, but that they had a little trouble about a check. This statement was made in response to an inquiry as to how the defendants came out on the sale of the Stout cattle, and the reference to trouble about a check identified the sale as the sale made to Griffith. The defendants could not have sold the cattle to Griffith unless they owned the cattle, so the plaintiff’s sale .to the defendants stood, and the plaintiff made no sale to Griffith. The man referred to was Brown. In order to complete the sale to Griffith by delivery, Brown obtained possession of the cattle from the plaintiff. The price to the defendants was 4% cents per pound. To avoid the necessity of weighing the cattle, they were guessed off at $40 per head. Having obtained the cattle from the plaintiff, having sold and delivered them to Griffith, and having come out all right on the sale (retained the fruits of the transaction), all by means of Brown’s agency, the defendants are not in a position to repudiate either his agency- or his conduct in adjusting the price. The fact that Brown was the agent of the defendants, and that his adjustment of the price was actually ratified, was further indicated by another statement-attributed to Hopkins. He said they bought the cattle for $40 per head — they cost 4% cents, but were lumped off at $40. Bolin’s conduct and statements concerning the protested check were corroborative of Hopkins’ statements and of the plaintiff’s theory of the case. Other grounds for the inference of agency appeared in the evidence.

It is elementary that agency may be proved by facts, circumstances, admissions, and other indirect evidence, and that ratification is equivalent to an original grant of authority.

The judgment of the district court is reversed, and the cause is remanded for trial.