Hoit v. McIntire

Mitchell, J. Plaintiffs’ assignments of error are exclusively of two classes: First, that the. court erred in making certain findings of fact; and, second, that it erred in certain of its conclusions of law. The first were not discussed by counsel, either in his brief or in his oral argument, and he has nowhere attempted to point out wherein these'findings were erroneous. These assignments of error must, therefore, be deemed abandoned, and the facts as found must be taken as correct. Hence the case comes down to the single question whether the conclusions of law are justified by the findings of fact. These findings completely establish the defense that the check in suit was never delivered. Consequently, the legal question which plaintiffs’ counsel principally discusses is not involved, and need not be considered in the determination of this appeal. It appears from the findings that the check was given to Willard with instructions to deliver the same when a written contract for the sale of certain real property by George H. Hoit, Jr., to the defendant was drawn up and properly executed; that this contract never was executed by Hoit, or, in his behalf, by any one having authority to do so, but that Willard nevertheless, contrary to defendant’s instructions, did deliver the check; that, as soon as defendant discovered that the check had been delivered without the contract referred to having been executed by Hoit, he repudiated his liability thereon, and notified Hoit that he would not pay it. This being so, the defendant cannot be held on the cheek, unless he in some way subsequently ratified Willard’s act, or is by his conduct estopped from denying Willard’s authority to deliver it. But the findings affirmatively negative any such ratification, or any facts that would create an estoppel, for it is found that defendant’s promises to pay the 470 check were all made before he had been informed that the contract, which constituted the consideration for it, had not been executed by Hoit; and it also appears that Hoit, through his agent, knew the terms and conditions upon which the check was given to Willard, and also knew when he received the check that those terms and conditions had not been complied‘with, and, consequently, that Willard had no authority to deliver the check. Under such a state of facts, it is very clear that there is no foundation whatever for claiming either a ratification or an estoppel. The attempt of Hoit, after defendant had already repudiated the act of Willard, and after the commencement of this action, to ratify the unauthorized act of Fred C, Hoit in assuming to execute the contract in his behalf, could not have the effect of validating the unauthorized act of Willard. (Opinion published 53 N. W. Rep. 918.) Order affirmed.