Benham v. Ferris

Ostrander, J. (after stating the facts). We shall consider but one of the numerous assignments of error, which is the refusal of the court to charge the jury that: “ Under the undisputed evidence in this case there was no such contract of agency proven and established by the plaintiff that will bind the defendant, Mr. Ferris, to the payment of a commission to the plaintiff, and the plaintiff cannot therefore recover under the proofs in this case.” It is not claimed that defendant ever made any agreement with plaintiff to sell his lands, or ever saw or communicated with plaintiff. The claim of plaintiff is stated in the brief in this way: “ It is our claim in the case at bar that there was sufficient testimony as to defendant Ferris’ knowledge of Mingus’ dealings and transactions with Benham, and of his ratification of such transactions, to justify the jury in finding that Mingus was in fact the agent of Ferris, with full authority to make the contract on Ferris’ behalf with Benham; and, if they so found, they had a perfect right to consider the statements of Mingus, as testified to by Benham, as being part of the transaction, of the benefits of which Ferris availed himself with full knowledge of the facts, which constituted a ratification on his part.” There is testimony tending to prove an agreement between defendant and one Mingus, that if Mingus would sell defendant’s farm, he might have all he could get more than $1,800. There is testimony tending to prove that Mingus availed himself of the services of plaintiff upon an arrangement made between them. There is testimony tending to prove that plaintiff brought about a sale of the land in two parcels for more than $1,800, and that defendant aecepted from Mingus the sum of $1,800, and conveyed the land; the plaintiff being named as vendee in one of the deeds. We have discovered, and have been referred by counsel for appellee to, no testimony tending to prove any authority of Mingus to employ plaintiff on [634] defendant’s account, or to make for defendant any arrangement with plaintiff, and none tending to prove that defendant ever supposed that plaintiff was claiming to act as his agent, or was assuming so to do. The jury should so have been instructed. Judgment is reversed, and a new trial ordered. Montgomery, C. J., and Brooke, Blair, and Stone, JJ., concurred.