Shinn v. Guyton & Harrington Mule Co.

ELLISON, J. This action is based on a contract renting a farm to defendant at the sum of $850, and for damages alleged to have been done to the farm by defendant while occupying it as tenant. Each claim was set out in a separate count. The defendant demurred to the petition on the ground of improper joinder of causes of action. . The demurrer was overruled and defendant then asked that plaintiff be required to elect upon which count he would rely. This was also over [561] ruled and defendant thereupon answered. The verdict was for the plaintiff. The evidence tended to show that George W. Shinn owned the land and in June, 1901, sold it to A. J. Shartzer. While Shinn was yet in possession, Shartzer authorized him to rent it to this defendant and he did so by verbal letting’ for one year from the following March, 1902. Afterwards, March 10, 1902, Shartzer sold the.land to this plaintiff and assigned the verbal lease to her upon which this suit is brought. The evidence establishes without contradiction that Shinn made the contract of renting with defendant as the agent of Shartzer. But as to the terms of the contract the evidence is in conflict. In defendant’s behalf, it tends to show that Shinn rented the land for $850 with the agreement that a note of Shinn’s to one of the defendant company for $200 was to be accepted in part payment and that Shartzer was to put in a new windmill, or, if he failed to do so, defendant should put it in and deduct the cost of it from the rent. In plaintiff’s behalf it tended to show that the land was rented for pasture only. That the old windmill was to be repaired, but not a new one to be put in. It further tended to show that defendant promised to pay plaintiff all the $850 agreed to be paid, save the $200 note George Shinn owed. That no claim was made for a windmill. That defendant tore away some of the fencing and broke out some grass land which had been rented for pasture. The foregoing is but a general statement of the substance of the evidence. It is, however, sufficient for an examination of the law points presented for consideration.. In the first place, there was no misjoinder of causes of action in one petition; each cause was separately stated and arose out of the same transaction and were connected with the same subject. [Morrison v. Her [562] rington, 120 Mo. 665; R. S. 1899, sec. 593.] The court’s ruling thereon was correct. The first count of the petition is based on a verbal contract for money rent due on land rented for pasture. The contract was made with an agent and so long as plaintiff relies upon such contract as the foundation of her cause of action, she must accept it as made; she not having the righ,t to select such portions as she likes for acceptance and to reject other portions on the ground that the latter were not within the authority of the agent who made the contract. Instructions were given in plaintiff’s behalf, the effect of which was to authorize the jury to reject certain portions of the contract made, on the ground that Shinn as Shartzer’s agent, had no authority to bind the latter as to those portions. These were wrong. If plaintiff adopts the contract she must adopt it as a whole. [Porter v. Woods, 138 Mo. 539, 552; State ex rel. v. Harrington, 100 Mo. 170; Nichols v. Kern, 32 Mo. App. 1.] In bringing an action upon a contract made by an agent the terms of which plaintiff knew, she thereby ratified the contract so made. [Showinger v. Peabody, 57 Conn. 42; Bailey v. Pardridge, 134 Ill. 188; Bissell v. Dowling, 117 Mich. 646; Osborn v. Jordan, 52 Neb. 465; Billings v. Mason, 80 Maine 495; Hyatt v. Clark, 118 N. Y. 563.] It may be suggested that at the time plaintiff instituted this action she did not know of the terms of the contract she insists now were unauthorized. But she is still claiming the right to enfofce the part she admits is authorized. The contract as made by her assignor’s agent is the only contract which defendant made and it is the only one upon which it can be held; and to be held oh any part, it is entitled to all of its parts. A principal who finds himself represented by an agent in an unauthorized manner, need not lose his property if it has been appropriated, nor his rights if they have been transgressed. But his remedy is not through the unauthorized contract. Prom the foregoing [563] it will be seen that so long as plaintiff insists, on the action on tbe contract, tbe only proper issue is, wbat was that contract, and not whether it was one which the agent was authorized to make. We may remark as to plaintiff’s count for damages done to the place that defendant’s suggestion that the cause of action therefor had not been assigned to the plaintiff and therefore she had no cause of complaint, is not important. The damage done to the land, if any, was after the contract of renting and after the sale of the land to plaintiff. In that view she did not need an assignment. The judgment is reversed and the cause remanded. All concur.