Bouquot v. Awad

Opinion by RUMMONS, C. (after stating the v facts as above). Counsel for defendants in their brief assign 23 grounds of error as cause for a reversal of the judgment of the trial court.' These assignments are grouped under 12 heads. We will consider these assignments as nearly in the order presented as we can in determining this case. Plaintiff in his petition alleges that on the 24th day of December, 1910, he had the goods and chattels which he seeks to recover in a certain store building, and was preparing and had been preparing to make a Special sale thereof, as a Christmas sale, at public auction, and that he was prevented from holding said sale because of the attachment of defendants. He also alleges that on said 24th day of December, 1910, he had in his employ one Chas. Awad, whom he was paying and had paid the sum of $2 per day for six days during which time.the said Chas. Awad was prevented from rendering service by reason of the attachment of defendants. Plaintiff testified at the trial that he knew nothing of the trade made by Chas. Awad for the stock of goods until he arrived at Woodward in response to a telegram from Chas. Awad, and that he then tried to rescind the trade without avail, ■ and, after finding such rescission could not be made, he brought this action of replevin to take the stock of goods from the possession of the sheriff in whose hands they were when he arrived at Woodward. Under the first heading of the brief of defendants, embracing their first, second, third, fourth, and fifth. *59 assignments of error, counsel for defendants argue at some length and with considerable ingenuity that the plaintiff by bringing this action of replevin thereby ratified the trade made by Chas. Awad in its entirety; not only that he ratified the delivery of the deed and the conveyance of the land to Beers, but also ratified the act of Beers and Chas. Awad in giving and taking a bill of sale to the stock of goods in the name of Chas. Awad and the taking possession of said Chas. Awad of said stock of goods and selling and disposing of the same for his own benefit. Counsel also seek to show by the allegations of the petition of plaintiff above referred to, which they claim are wholly inconsistent with his testimony, that he ratified in toto all the actions of Chas. Awad in the premises. We cannot agree to the soundness of the contention of defendants. Plaintiff by seeking to -recover possession of the stock of goods as-the owner thereof unquestionably ratified the conveyance of the land to Beers, which question is not involved in this case ; but it cannot be said that he thereby ratified the.act of his agent, Chas. Awad, in taking the stock of goods in his own name and disposing of it or attempting to dispose of it as his own property. The very fact that he brought his replevin suit seeking to recover possession of this stock of goods as the owner thereof, and his ratification rests solely upon that fact, refutes any claim that he thereby intended a ratification of the act of Chas.' Awad in taking for himself this stock of goods; for, if he ratified the transaction in its entirety and intended for, Chas. Awad to have the stock of goods for his own, his replevin action would be without foundation, and he would have no claim or right to recover therein. It is apparent from the evidence in the record, which does not seem to be *60 disputed, that Chas. Awad made the trade in violation of his instructions, and undertook to cheat and defraud his principal out of the stock of goods. He never acquired any title to the stock of goods by his wrongful acts, but during the whole transaction, up to the time the writ of attachment was levied, was in the eyes of the law the agent of the plaintiff. It is apparent that an agent can- . not in consummating a trade for his principal take the consideration which he receives for a sale of his principal’s property to himself; and, if he attempts to do so, the principal can make him account therefor, and can recover the property taken as consideration for such sale from the agent or any one claiming under him, unless he has been estopped by his conduct in the premises, as will be hereinafter considered. We do not think the authorities cited by defendants upon the subject of ratification are applicable to the facts in this case. As has been said, the agent, Chas. Awad, acted without authority in making this trade; but plaintiff unquestionably had the right and authority to ratify his acts in making the trade. But the rule sought to be invoked in this case by the defendants that such ratification extends to an acquiescence in and ratification of the wrongful acts of the agent in attempting to take to himself and appropriate to his own use the consideration received by him for his principal’s property would make the use of an agent in a business transaction a most perilous thing. Under the contention of defendants, in a case like the one at bar, if the principal acquiesced in and ratified the passing of the title to his property by his agent, where the agent had taken the consideration therefor to his own use and benefit, he would also ratify such wrongful act of the agent, and would thereafter be *61 estopped from demanding an accounting or a return of the consideration from the agent. If plaintiff had no right to maintain an action of replevin for property wrongfully appropriated by his agent against an officer holding the' same under á writ of attachment levied upon it as the property of such agent, he would equally be without right to maintain an action of replevin against the agent to recover his property. The evidence shows that the plaintiff had no knowledge that his agent, Chas. Awad, had taken this stock of goods as his own and was holding himself out as the owner thereof until he came to Woodward and after the stock of goods had been seized by the defendants under the writ of attachment. There is no evidence to contradict the testimony of plaintiff as to this matter, and there is no evidence of any facts which would have put him upon inquiry. It cannot be claimed that he was bound to presume that his agent would violate his instructions and attempt to defraud him so as to require him to keep constant supervision over the acts of the agent with relation to the property intrusted to the agent. If such were the rule, a principal would have no need of an agent; and' it seems from the evidence that Qnly a period of about 20 days' elapsed from the taking of possession of the stock of goods by the agent until the time the writ of attachment was levied, so that no laches can be imputed to the plaintiff because he did not discover that the agent was in possession of this stock of goods and claimed to be the owner thereof. It seems apparent, therefore, that there are no facts upon which an estoppel might be claimed against the plaintiff to prevent him asserting his title to the stock of goods and his right to possession thereof, even if the defendants came within *62 the class of persons who could avail themselves of such an estoppel. The debt for which defendants levied upon this stock of goods was incurred by Chas. Awad more than a year, before the trade in controversy here; and there is no evidence in the record that the défendant the Howard Mercantile Company, his creditor, extended any credit or parted with anything of value on the faith of the claim made by Chas. Awad that he was the owner of the stock of goods in controversy, so that the defendants in this case coúld not have availed themselves of an estoppel against the plaintiff even if there had been any evidence which would justify applying the rule of es-toppel. Limerick v. Lee, 17 Okla. 165-173, 87 Pac. 859; Palmer v. Meiners, 17 Kan. 478-483; Hill v. Van Sandt, 1 Kan. App. 367, 40 Pac. 676; Brant v. Virginia Coal & Iron Co., 93 U. S. 326, 23 L. Ed. 927. The contention of the defendants that the petition of plaintiff admits his knowledge of- the acts of Chas. Awad in taking the bill of sale of the stock of goods in his own name and in holding himself out as the owner thereof is not borne out by the record. The parts of the petition upon which defendants rely have been set out above, and they nowhere contain any statement as to the knowledge of the plaintiff. They do allege that plaintiff was in possession of the stock of goods prior to the attachment, and that Chas. Awad was in his employ, and that he had been compelled to pay him $2 per day during a period of six days when he was prevented from work by reason of the attachment. These are statements of fact connected with the case concerning which plaintiff’s knowledge might have been acquired after his coming to Woodward, and after the writ of attachment had been levied. An allegation, of fact in a pleading is not a statement or an *63 admission by the pleader that he knew such fact at the time of its occurrence. As we have said before, Chas. Awad, while acting in violation of his instructions, and while apparently trying to defraud his principal, was still the agent of the plaintiff, and his possession of the stock of goods ■ would in law be the possession of the plaintiff. So that the allegations in the petition, in our view of the case, do not constitute an admission of knowledge, nor are they in conflict with the testimony of plaintiff. The second, third, fourth, fifth, and -sixth propositions contained in the brief of defendants assign error in the instructions given by the court. We haye examined these instructions, and do not think they are open to the criticism made by defendants. We think the statement of the law of the case is substantially correct, and that the issues between plaintiff and the defendants are' fairly submitted to the jury, and that the court did not in the instructions complained of invade the province of the jury and instruct them as to the weight of evidence or as to the facts in the case. We think, in fact, that the theory of the defendants was presented by the instructions more favorably to the defendants than they were entitled to. We do not think it necessary to set out the instructions given in detail, as we find no prejudicial or reversible error to be contained in them. The seventh, eighth, ninth, and tenth propositions in the brief of defendants assign error of the court in refusing instructions requested by the defendants. We do not state these requested instructions in full in this opinion, as we do not think it necessary, but we have carefully examined them, and do not think, that the court erred *64 in refusing the instructions requested, for the reason that the record contains no evidence upon which the requested instructions could have been based; therefore it was not error to refuse them. The eleventh proposition assigns error in the admission by the count of testimony over the objection of defendants. The defendants have not complied with rule 25 of this court (38 Okla. x, 137 Pac. xi) by setting out in their brief the full substance of the testimony to the admission of .which they object, and stating specifically their objection thereto; but we have examined the pages of the record to which we have been referred, and we are of the opinion that the court did not commit prejudicial or reversible error in .admitting the evidence complained of. In the twelfth assignment of error defendants complain of the rejection by the court of their offer to introduce the precedent for journal entry of the judgment of the district court of Woodward county in the attachment suit brought by the defendant Howard Mercantile Company against Chas Owad. It is argued by the defendants that, as it was necessary for defendants not only to prove that the goods were in their possession by virtue of a valid writ of attachment, but that there existed at the time of the attachment a valid indebtedness upon which to base it, they were entitled to show the judgment of the court upon such claim of indebtedness, and that the attachment had been sustained by the court. Since the court, in submitting the case to the jury, proceeded upon the theory that the defendants had a valid claim against Chas. Owad by reason of their writ of attachment, and his indebtedness to the defendant Howard Mercantile Company was not questioned by any suggestion of either counsel or the court in the trial of the cause, the admission of the *65 evidence offered could not have affected the result of the case; and therefore, if the court committed any error in the rejection of such evidence, it was harmless and not ground for reversal. But we think the evidence offered was not competent to show- the judgment of the court. It is not sufficient to prove a judgment to offer alone the precedent for journal entry signed by the judge; the judgment must be proved by the records of the court entering the same, and not by the files thereof. 1 Black on Judgments, sec. 106; Boynton v. Crockett, 12 Okla. 57, 69 Pac. 869; Ex parte Stevenson, 1 Okla. Cr. 127, 94 Pac. 1071; Ex parte Howard, 2 Okla. Cr. 563, 103 Pac. 663. We conclude no reversible error appears in the record, and that the judgment of the court below should be affirmed. By the Court: It is so ordered.