Birkle v. Coleman , 1912 Pa. Super. LEXIS 14 ( 1912 )

Opinion by

Henderson, J.,

The plaintiff’s title to the lumber claimed by him rests on a contract in writing entered into by him with James G. Shaw, March 26, 1910, but the defendant’s evidence shows that the lumber belonged to his wife; that she owned the farm on which it was cut and that it was there at the time of the alleged sale. If this evidence states the fact the plaintiff was bound not only to prove his contract but to establish the authority of the husband to sell his wife’s property and as there was no written evidence of authority the question whether such agency existed was one of fact to be shown by the parol testimony introduced. Where an agency is to be implied from the conduct of the parties or is to be established by witnesses the fact and scope of the agency are for the jury: Singer Mfg. Co. v. Christian, 211 Pa. 534. The first question for consideration then if the property belonged to Mrs. Shaw was, Did she authorize her husband to sell the lumber to the plaintiff. She expressly declares that she did not so authorize him but on the contrary told him that she would not sell to Mr. Birkle and in this she is corroborated by her husband. There is no direct contradiction of this testimony and the plaintiff is compelled therefore to rely on the conduct of the parties to establish an implied authority or to show a ratification of an unauthorized sale. Some of the evidence offered by the plaintiff tends to show assent by the wife to what her husband had done, but this is not so conclusively shown as to enable the court to say that James G. Shaw had authority to sell the lumber. That was a subject for the consideration of the jury as also would be the question whether Mrs. Shaw owned the lumber if there be any dispute about that matter. Another question of fact was developed by the evidence. The defendant’s contract was made April 2, 1910. The plaintiff had not taken actual possession of the lumber under his purchase nor is there any evidence that it was marked in any way to give notice of a change of ownership. It was important, therefore, for the plaintiff to show that the defendant was not a bona fide purchaser of the lumber for it is the law now as it has been at least since Clow v. Woods, 5 S. & R. 275, that if a purchaser pays the price for goods purchased by him, without taking possession of them, he takes the risk of the integrity and solvency of his vendor when the rights of a subsequent bona fide purchaser or an execution creditor arise: Stephens v. Gifford, 137 Pa. 219; White v. Gunn, 205 Pa. 229. The possession to be taken need not be an actual physical possession. It is sufficient that the purchase be made in good faith with an intention to transfer the possession as well as the title and that the purchaser assumes such control of the property as ought reasonably to indicate a change of ownership; but without such reasonable indication of a change of ownership or notice of such sale a subsequent bona fide purchaser acquires a good title. As there was nothing in the location or appearance of the property to show a transfer of ownership the plaintiff undertook to prove that the defendant knew that a prior sale had taken place. But the defendant testified that he did not know there had been a former sale: “I knew he [the plaintiff] was dickering for it but I did not know he had bought it.” Mr. Shaw told him it was as good as sold, and he repeated that he did not know it was sold but from the way the parties acted he had reason to believe it was not sold. The evidence of notice and of want of notice is all in parol and only the jury could say whether the defendant knew that a sale had taken place. As the defendant received word from James G. Shaw on March 31, that he could have the lumber and on April 2, Mrs. Shaw closed a bargain with the defendant’s agent there was some foundation for the defendant’s belief, if he entertained such a belief, that Mrs. Shaw or her husband had not closed the deal.

It is said, however, that there is evidence of ratification of the act of her husband by Mrs. Shaw; that she learned what he had done soon after the contract with the plaintiff was made and that she did not take any action to disaffirm it for several days. Silent acquiescence on the part of the principal for a length of time twith full knowledge of the facts and without a sufficient excuse may amount to a ratification of the unauthorized act of an agent. It is the duty of the principal to disavow such unauthorized act within a reasonable time after notice of it. The question of reasonable time depends on the circumstances of each case and where the rights of third parties are involved should be prompt, but what is a reasonable time is ordinarily a question for the jury: Porter v. Patterson, 15 Pa. 229; Kelsey v. National Bank, 69 Pa. 426; Auge v. Darlington, 185 Pa. Ill. That the reasonableness of the disavowal of the act of her husband by Mrs. Shaw was for the jury is apparent from the testimony. She did not learn until March 27 that her husband had sold to the plaintiff. She lived in the country many miles from the latter’s residence and place of business. She expected him to return to the farm within a few days to give attention to the lumber and on his first appearance notified him that she would not permit the lumber to be sold. And in the same connection was the evidence that her husband tendered back to the plaintiff the down money paid at the time the contract was signed. The evidence as we view it required a submission to the jury of the questions whether the lumber belonged to Mrs. Shaw; whether her husband had authority to sell to the plaintiff; if not, whether she acted with reasonable promptness in disavowing the sale after she knew it had been made; and if these questions be found in favor of the plaintiff, whether the defendant was a bona fide purchaser without notice of the prior sale.

The judgment is reversed and a venire facias de novo awarded.