Lee's Ex'rs v. Virginia & Maryland Bridge Co.

PattoN, Judge, announced the opinion of the Court: Upon a demurrer to the evidence the rule as to the weight to be given to the evidence is well settled. The demurrant admits not only the truth of the facts proved, but also all that may be fairly inferred from those facts. 10 W. Va. 546. The question raised by the evidence in this case is, whether J. H. Grove was acting as the agent of and by the authority of the Virginia and Maryland Bridge Company in bidding in the property, when it was offered for sale by the trustee acting under the decree of the oircuit court of Washington county, Maryland, in the suit of Blackford’s ex’rs v. The Virginia and Maryland Bridge Company, or if not acting as such agent, whether the company afterwards ratified his acts in the premises and enjoyed the benefit of h'is action. In either event the defendant in error was entitled to recover the money paid by him as security for the purchase-money to A. K. Syester, trustee. The facts show, that there was a mortgage upon the real estate owned by the company; that a suit was brought against the company to foreclose that mortgage, and the property was ordered to be sold ; that in the mean time the company sold a portion of the property for more than the amount of the mortgage, principal and interest, and agreed to appropriate the purchase-money to the liquidation of the mortgage; that when the property was offered for sale J. H. Grove representing himself as the president of the company and as acting for the company, requested the trustee instead of selling the property in the usual way to treat him as the purchaser for the company at the price of $3,800.00, the amount due upon said mortgage; that said trustee did so and reported the facts to the court, and his action was ratified by the court; that the cash payment was made by Grove still claiming to be acting as the president of the company, taking a receipt in his own name as such; that at the same time Zephaniah Bane, the trustee of the company, paid to Grove the amount of that cash-payment on account of his purchase for the company; that when the second payment became due Uriah Knode, a vendee from Bane, paid the amount of that payment to the trustee, w'hich payments were reported by the trustee to the court and were paid to the mortgage-creditor under the decree of the court. I cannot well conceive a stronger state of facts, from which [304] to draw the inference, that Grove was acting for the company, and that the company emjoyed the benefit of his acts. Grove represented to the trustee, that he was acting for the company. This was reported to the court in a suit, to which the company was a party. Can it be supposed, that this was not known to the company? Must it not be conclusively presumed, that they were cognizant of that report ? They did not except to the report; they did not repudiate the authority claimed by Grove to act for them in that transaction ; the cash payment of $1,266.66 was paid by their vendee to Grove and by him paid to the trustee taking the receipt himself as president of the company, and when the second payment became due, it was at the instance of Grove still claiming to act for the company paid by the vendee, Knode, to the trustee and by him paid to the mortgage-creditor ; and all this without a word of protest or dissent from the company. They were parties to that suit, and they were reported as purchasers through Grove, and that purchase was ratified by the court, they are bound by that report and the decree confirming that report, so far as to show the relations between them and Grove. “A record may be admitted in evidence in favor of a stranger against one of the parties, as containing a solemn admission or judicial declaration by such party in regard to a certain fact. But in that case it is admitted not as a judgment conclusively establishing that fact, but as the deliberate declaration or admission of the party himself that the fact was so.” 1 Greenlea£ on Ev. § 527. It seems to me, that it may not only be inferred fairly from the facts proved, that Grove was acting in behalf of the company in this transaction, that his acts were fully ratified and approved, and that the company adopted and enjoyed the benefit of the consideration, but that any other conclusion would be inconsistent with the facts proved. It is true that Grove gave his individual note, with Lee as his security, to the trustee, and beyond question in an action on said note the makers would not have been permitted to prove as between them and the trustee, the payee, that it was executed for the company, so as to defeat their personal liability. As between them it was their individual note, and the company was not bound. But evidence is admissible to show as between the [305] principal and the agent, that an instrument was executed to a third party in the individual name of the agent at the request oí the principal and for him, or that the principal adopted and enjoyed the consideration, for which the instrument was executed. Devendorf v. West Virginia Oil and Oil Land Company, 17 W. Va. 135. Where money has been paid for the use of the defendant, the request necessary may be either express or implied. It will be implied as well as the promise, where the defendant" has adopted and enjoyed the benefit of the consideration. Nutter v. Sydenstricker, 11 W. Va. 435. The counsel for the plaintiff claims, that the two receipts of the trustee acknowledging the receipt of the cash-payment and the first deferred payment are not admissible as evidence in this case. These receipts together with the other papers and documentary evidence were given to the jury subject to any proper exceptions on the part of the defendant. I think there can be no question as to the admissibility of these receipts as showing the fact, that the moneys were received by the trustee. Even his verbal statement to another person could have been given in evidence as to the fact of payment, as an admission on the part of one entitled to receive money and charge himself with its receipt. Holliday v. Littlepage, 2 Munf. 316; Sherman v. Crosby, 11 Johns. 70. In Holliday v. Littlepage the plaintiff offered in évidence the deposition of Francis Irvine, who stated that in a conversation with Mr. Haywood, the owner, and Captain Meredith, the master of the ship, in which the testator of the defendant sailed for Europe, they both said that the plaintiff had paid the passage of defendant’s testator. It was held, that the deposition should be read. The court says: “The acknowledgement in question having been made at or about the time of the said testator’s sailing for Europe and being the admission of those who were competent to charge themselves with the receipt of the passage-money by an ordinary receipt or acquittance, the court is of opinion, that the said testimony on these grounds and not on that assigned by the court below was properly received by the court.” The ground, upon which the court below had admitted the testimony was, that the captain was dead, but the Court of Appeals held, that the testimony was admissible, whether he was dead or not. [1] I am of opinion to affirm the judgment of the court below with costs to the appellee and damages according to law. Judges JohnsoN and Haymond Concurred. Judgment Affirmed.