Johnson v. Orrell

Seawell, J. The plaintiff is relying on a specific written contract between himself and the defendant on which to recover from the latter the commission he claims. The evidence, dehors the document, would hardly establish the relation of agency between the plaintiff and the defendant at all. Agency is the product of a mutual agreement. It is a situation which cannot be forced on a person in invitum, and no presump *202 tion or inference of agency arises from the fact that a realtor, with a buying client, has contacted a person willing to sell, and has consummated the sale. the defendant bad not listed bis property with plaintiff or initiated any relation of that sort. "Whether, in the course of the negotiations the plaintiff bad succeeded in, so to speak, backing himself into that position, might have been a question for the jury except for the fact that the plaintiff, as stated, sued on an alleged written contract, and bis rights must spring out of hat writing, or fall with it. The circumstances surrounding the alteration in the contract of sale between Brinson and Orrell are markedly unusual. After the contract between these two bad been read, approved and signed in duplicate, and Brinson, considering the business finished, took bis copy and retired, plaintiff took the copy and without calling the attention of Orrell to what be was doing, typed into the body of it an alteration to the effect that the sale was subject to a commission of 10 per cent in favor of himself. This, be says, be gave to Orrell. Orrell says be did not. the dispute over this detail is not conclusive. Since the plaintiff admits that the matter constituting the alteration was made after both Brinson’s and Orrell’s signatures bad been placed on the document (which bad been made in duplicate) it could only become effectual by way of ratification and this must be both with the knowledge of the party to be charged as well as with the intent to ratify. “In order that any acts of the party may be constituted as ratification of an alteration, the particular act must be done with the full knowledge of the alteration.” “The party must have knowledge in fact, and it is not sufficient that be bad means of knowledge.” 3 C.J.S., Alteration of Instruments, sec. 78. This is certainly true unless the circumstances are such as to put the duty on the party charged to further examine the instrument, or such as to put him on constructive notice, neither of which appears here. Johnson assumes that Orrell read it because be gave it to him — passes from that assumption to the statement, “I know be read it,” which must be considered in connection with the only indication of knowledge as to which be testified, that Orrell bad the paper. The evidence discloses that there bad been serious controversy between the plaintiff and the defendant about the matter of commissions — the defendant declaring that plaintiff was Brinson’s agent and that be bad offered him a flat price, plaintiff contending that be owed him commissions at 10 per cent. This emphasizes the duty of plaintiff under the circumstances to have brought to the attention of defendant the alteration *203 be admits having made over defendant’s name without first getting his consent. Looking at the evidence as a whole we do not deem it sufficient to go to the jury as bringing to the knowledge of the defendant the alterations made in the Orrell-Brinson contract in favor of himself, over the signature of the parties, a thing necessary to its validity. The plaintiff took the very unusual method of inserting a clause for his benefit under a misleading heading on a contract made inter alios and we cannot see that there is any presumption that the possession of the paper by the party charged, even if it had been admitted, was sufficient in law or in fact to put him on constructive notice of the alteration. Eatification is as effectual in law as original execution. But it is not sufficiently evidenced in this case to make it a jury question. The motion for judgment of nonsuit should have been allowed. The judgment to the contrary is Beversed.