
    SINGER MANUFACTURING COMPANY v. FRANCES FLYNN.
    
    January 21, 1896.
    Nos. 9833—(222).
    Contract by Agent — Modification—Ratification.
    
      Held, the evidence sustains the findings and judgment.
    Appeal by plaintiff from a judgment of the municipal court of St. Paul, in favor of defendant, entered in pursuance of the findings and order of Twohy, J.
    Affirmed.
    
      Nelson ds McDermott, for appellant.
    
      O. D. (& ños. D. O'Brien and Wm. F. IJtmt, for respondent.
    
      
      
         Reported in 65 N. W. 923.
    
   CANTY, J.

Replevin for a sewing machine. Trial by the court without a jury. Judgment for defendant, and plaintiff appeals.

One Noel was the agent of plaintiff, with authority to make contracts for the sale of its sewing machines according to the terms of a certain printed blank form. On May 27, 1892, he made an oral contract with defendant, by the terms of which he agreed to sell her one of plaintiff’s sewing machines, and take in payment therefor $5 in cash, an old sewing machine priced at $10, and two months’ board for himself at the rate of $25 per month. At the same time she signed a so-called lease, being one of said blank forms which he had filled up, the legal effect of which is a conditional sale of the sewing machine by plaintiff to her for the price of $60, reciting that $10 thereof was paid with her old machine, $5 in cash, and the balance was to be paid at the rate of $3 per month thereafter until paid. This contract he retained. He filled out another blank in the same form, except that he added to the bottom of it the statement, “This is to be paid in board.” This blank, so filled up, was delivered to her without being signed by any one. Thereupon the new sewing machine was delivered to her, her old one to the plaintiff, and she also paid the $5 in cash, and Noel commenced to board with her, and boarded a month and one-half.

On the trial, the defendant testified that, about a week after Noel commenced to board with her, an agent or collector of tbe plaintiff called at her house and asked her what arrangements she had made as to the sewing machine, when she told him that the balance of the purchase price was to be paid in boarding - Noel. The witness continued: “He said, ‘Yes; but you must have receipts every month.’ And I said, ‘Give me a receipt for a month.’ And he took out a paper, and then he hesitated a moment, and he said, T will come up Monday, and give it to you.’ And I said, ‘All right/ So he didn’t come up, and I have not got any yet. I went down to the office to see Mr. Winchell, and they said he was out. * * * I went to Mr. Winchell' and asked him for a receipt. I told him what the gentleman said who came to the house, — -that he would give a receipt, — and he said, ‘If that gentleman said so, he would have to pay the money/” The Court: You told Mr. Winchell that yourself? “A. Yes, sir; I went and told Mr. Winchell that myself, and he said, ‘Mr. Noel is working for us, and he is our agent, and I think I can make him pay for it.’ And he still continued to work for them some time afterwards.” On cross-examination she further testified that Noel promised to get her receipts from the company, and, further, as to her conversation with Winchell, the plaintiff’s manager. Said the witness: Q. You have seen Mr. Winchell? A. Yes, sir. Q. He told you, didn’t he, that he would try and get Mr. Noel to fix the matter up? A. He said he didn’t want to get into any trouble. He supposed he would be responsible for it, and he would try and have it fixed up. Q. Did he say he would try and have Mr. Noel fix it up? A. He said he would try to fix it up. He said, “Perhaps I can get it out of Mr. Noel.” That is the way he spoke about it.

It must be held on the evidence that Noel had no original authority to barter this sewing machine for his board, and it is contended by appellant that his attempt to do so was never ratified by his principal, and that, even if his principal had attempted to ratify the transaction, it would avail nothing, as it would be simply an attempt to ratify a contemporaneous oral agreement contradicting the written agreement for the sale of the machine, and that such written contract, signed by the defendant, must control. Whether or not such a contemporaneous oral agreement, subsequently ratified and executed, amounts to a subsequent oral modification of the written contract, we need not decide. We are of the opinion that the evidence will support a finding that Noel made a subsequent oral contract by which he attempted to modify the original written contract so as to make the balance of the purchase price of the machine payable in the board of himself. The evidence tends to prove that he had several conversations to this effect with defendant after tfie making of the written contract, and while he was boarding with her. We are also of the opinion that the evidence tends to prove that plaintiff ratified what he thus attempted to do. For two years after plaintiff obtained full knowledge of its agent’s acts, it seems, both by word and act, to have acquiesced in the same. According to the original written contract, the rent or purchase price came due each month in instalments of $3 per month. But for two years after plaintiff obtained full knowledge of Noel’s acts, it made no positive disavowal of the same, and made no demand for, or attempt to collect any of, these instalments. Under these circumstances, we are of the opinion that there is sufficient evidence of ratification.

We are also of the opinion that the court did not err in admitting in evidence the unsigned written instrument aforesaid. While it was of no weight or validity in itself, it tended to throw light on and render intelligible the subsequent conversations between defendant and Noel and defendant and Winehell, and furnish some of the terms of the subsequent modification of the contract. This disposes of the case.

Judgment affirmed.

COLLINS, J.

(dissenting). I find no evidence tending to sustain the statement that Noel made a subsequent oral contract by which he attempted to modify the original written contract, or that plaintiff ratified what Noel attempted to do. In my judgment the proof is that, within a week after defendant obtained the machine, she learned that plaintiff’s manager repudiated all agreements outside of those contained in the writing, and from that time on she was trying to collect what Noel owed her for board through the plaintiff company and the assistance of its manager. The latter simply delayed efforts to collect from defendant the monthly instalments as they fell due. The manager thereafter allowed defendant to retain and use the machine ior about two years before he insisted upon payment. The plaintiff corporation ought not to be punished for exercising some forbearance in the enforcement of its legal rights. 
      
       Buck, J., did not sit.
     