Hartwell v. Equitable Manufacturing Co.

The opinion of the court was delivered by Smith, J.: The defendants in error filed a motion to dismiss on the ground that more than ten days elapsed from the time the court. instructed the jury to return a verdict until the .allowance of the order extending the time to make and serve a case-made. It is said that a request for an instructed verdict, like a demurrer to evidence, presents a question of law only, and hence no motion for a new trial is necessary, and, if one be made, it can not, extend the time within which the court or judge may grant an order extending the time to make and serve a case-made. However logical the argument may be, it ignores the express provision of the statute. (Civ. Code, § 306; Darling v. Railway Co., 76 Kan. 893, 94 Pac. 202.) The motion is denied. ■ Two errors are assigned as cause for reversal, but there is practically but one question presented, viz., the instruction to return a verdict for the plaintiffs and the denial of the motion for a new trial on this ground. The evidence as to the authority of the agent to make the alleged contract is the only issue presented by the pleadings upon which evidence was offered. As to this issue the evidence was conflicting, and an instructed verdict thereon was unwarranted. The second defense — that the writing, called a contract, was obtained by fraud — was not supported by any evidence, [263] and hence as to this def ense the instruction was proper. Although no facts were pleaded in the petition or reply to justify so doing, the plaintiffs introduced evidence tending to show that the defendant was estopped from denying the authority of the agent or the validity of the contract. To the introduction of this evidence no objection appears to have been offered. Under the authority of McCreary v. Parsons, Executrix, 31 Kan. 447, 2 Pac. 570, and Fiedler v. Motz, 42 Kan. 519, 22 Pac. 561, the issues will be considered as enlarged by consent of parties, and the objection, made for the first time in the motion for a new trial, as too late. On the other hand, the writing sued bn does not,' on its face, purport to have been signed by Hibbard, as agent for the defendant, but appears to have been signed by both the defendant and Hibbard, as parties. Hibbard is not named in the petition as defendant’s agent, nor was he mentioned in any of the letters from plaintiffs to defendant, except in their reply to defendant’s letter, in which he told them there was a misunderstanding about the matter, giving the reasons for his delay in answering their letters, and informing them that he held the goods subject to their order. There is no evidence that the defendant sold or offered to sell any of the goods or in any way treated them as his own. It'is trite law that where one, without authority, assumes to act as the agent of another in making a contract, the principal must repudiate the transaction within a reasonable time after all the material facts in regard thereto have come to his knowledge or he will be presumed to have ratified the contract. It is also a well-recognized rule that the question as to what constitutes such reasonable time under the particular circumstances, and under proper instructions, is one of fact for the jury, and not of law for the court. (2 Kent’s Com. *616; 1 A. & E. Encycl. of La. 1203.) Had Hibbard correctly reported the transaction to his em [264] ployer a jury might well hold the defendant to greater promptness than if they believed he did not do so. The testimony of the defendant as to when he discovered, as he claims, that the transaction was not as reported to him by Hibbard does not seem entirely consistent. He says he saw the contract when the box of goods was opened, about the last of January, but does not say whether he read it. Again he says he wrote the letter to plaintiffs, dated April 18, when he learned the contract was different than his clerk reported it — not just as soon as he learned of it. The weight of this evidence and what it proves is for the jury, not the court, to determine. We can not ágree with counsel for'plaintiffs that the letter of April 18, in view of all the circumstances of the case,' ratified either the agency of Hibbard or the contract. The case should have been submitted' to the jury, under proper instructions. The' judgment is reversed and the case remanded, with instructions to grant a new trial.