Fenn v. Dickey

Opinion by Mr. Justice Mitchell, Notwithstanding the number and the elaboration of the assignments of error, there is little in this case but questions of fact which the jury have settled. The stress of the argument was put on the absence of sufficient evidence of a joint contract by all the parties defendant, and especially by Kreitler, as to whom it was admitted that he [270] was not in the original agreement, and must have become party, if at all, by ratification. No just complaint can be made of the charge of the learned judge on this subject, as he several times, in the most explicit and forcible way told the jury that unless they found that all the defendants joined in the contract originally or by ratification, the verdict could not be for the plaintiff. The criticism of the charge in the fifth and sixth assignments, as putting to the jury an alternative of execution or ratification, which included all the parties in both categories, is over refined. The jury were explicitly told more than once that as Kreitler did not purchase a share in the land until July he was not a party to the original contract and could only become so by ratification. The jury could not have failed to understand the judge as directing that each and every one of the defendants must be shown to have joined in the contract either by actual participation in making it, or by precedent authority to those who actually made it, or by ratification, and that as to Kreitler the last was the only way in which the evidence would permit including him. The appellants were certainly not entitled to ask anything more than this. In this connection the fourth assignment may be considered. In charging as to Kreitler the judge called attention to the date of his purchase and told the jury, as already discussed, that “unless you would find that he was interested before the agreement,” ratification was the only means of bringing him into the contract. It is now complained that this was submitting to the. jury a fact of which there was no evidence. But this is not the fair and reasonable construction of the language used. Taking it in its connection with what precedes and follows, it clearly means “Kreitler did not buy until July, and therefore he can only be brought in by ratification, unless you should find that he was interested before the agreement, which would be finding that he authorized Dickey or Darrah to sell property which he did not then own.” It was a parenthetical remark and, so far from submitting a proposition to the jury to find such previous interest, was intended to show them how absurd such a result would be, and thereby to emphasize the necessity of finding ratification in order to include Kreitler. The jury could not have been misled by it. [271] Coming now to the evidence we find it exceedingly conflicting, and it would be wearisome and unprofitable to go over it in detail. There is a solid basis of uncontroverted facts, with which we may start. The defendants were the owners of the land, and the plaintiff entered into negotiation with some of them as to the sale of it, he says in their behalf, they say in behalf of the prospective purchaser; the plaintiff found such purchaser in the firm of A. Pardee & Son with whom he made a written contract of option; all of defendants subsequently entered hito a written contract of sale to Barton Pardee, and all parties met at Tionesta and rescinded this contract because of inability of the defendants to make a marketable title. ■ The plaintiff’s case thus outlined in undisputed facts, is further made up of his testimony as to the contract for his commissions made first with Darrah and Dickey, and then communicated to the others, and assented to by them; his finding of the purchaser and bringing him to the owners, thus completing his part as agent or broker. Then we have the corroboration in part of the plaintiff by McLain, and in other part by Barton Pardee, who testified that the attention of his firm was called to the property by plaintiff, that the contract made in his own name was on behalf of his firm, and in consequence of plaintiff’s original communication, and that he Avas able, willing and ready to carry out the purchase if the title had been good. This made a prima facie case which could not have been kept from the jury, no matter how strong the opposing evidence. The only point necessary to notice in any further detail was the evidence pointing specifically to the ratification by Kreitler. As already noticed he bought an interest in the land in July, joined in the contract of August 13, to sell to Barton Pardee, and was present on September 2 at Tionesta for the purpose-of joining in the deed. Plaintiff also was there and testifies that he was introduced to Kreitler as the man “ who had sold the timber for them” (the defendants), and Kreitler said “they were .all obliged to me for selling the timber,” and in further conversation, Darrah, in Kreitler’s presence, said to plaintiff “ I presume you want your money,” and Kreitler said, “ We will be ready for you shortly,” referring to a meeting of the parties to be held on the same day at Mr. Tate’s office. This testimony, if believed, justified, if it did not require, an inference that [272] Kreitler knew that the sale of the timber that he had come to Tionesta for the purpose of concluding by the execution of a deed, was brought about by plaintiff, and that plaintiff was to be compensated for his services by the owners there present, including himself, and his remark that “ we will be ready for you shortly ” shows acquiescence and ratification of the arrangement of which he was then informed, even in the very improbable contingency of his having previously joined in a contract of sale for the important sum of $400,000, without knowing how such sale was brought about. There were other circumstances tending to corroborate this testimony, but it was of itself sufficient to take the case to the jury as to Kreitler with the others. The third assignment cannot be sustained. There was no evidence to justify the affirmance of the point that plaintiff could have sold for more than $400,000 and did not do so. Pardee & Son had an option at $450,000 but no binding contract at that price. It is somewhat difficult to see upon what the seventh, eighth and ninth assignments are based. The portions of the charge there specified were correct statements of the law, and the testimony of Barton Pardee was uncontradicted that the contract of August 13, though made in his own name, was on account of the firm of A. Pardee & Son, the purchasers procured by plaintiff. The tenth assignment, as to the admission of McLain’s testimony, is sufficiently answered by the learned judge below, that McCain’s saying to plaintiff, “ all right, go on and fetch your party and we will do as we contracted to do,” shows knowledge and ratification of what Darrah and Dickey had assumed to do. As the amended statement introduced no new cause of action there was no error in permitting the amendment. The other assignments of error do not seem to require special notice. Judgment affirmed.