Fulton County IL Archives Court.....Edwards, Vs Barnes 1893
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Deb Haines ddhaines@gmail.com April 19, 2006, 3:25 pm

Source: Il Appellate Court Cases 1893-1894
Written: 1893

W. Scott Edwards v. Eliza J. Barnes.

pages 38-41

1. HUSBAND AND WIFE-Transfer of Property.-A transfer of personal property from 
a husband to his wife, living together as such, must be evidenced by an 
instrument in writing as required by Sec. 9, Chap. 68, R. S. (Hurd’s Statutes 
1891, 798).

2. RATIFICATION-What is Not.-A husband sold a cow belonging to his wife. 
Returning home after the sale he threw into her lap a portion of the money and 
going away did not return for some days. She kept the money until his return 
when, at her request, he gave her a sum in addition to enable her to return to 
the vendor the purchase price, which she did, but he refused to accept the 
money or to return the cow. It was held that no inference of ratification 
arose from these facts.

3. SAME-Acceptance of a Part Without Prejudice to the Rest.-A person asserting 
ownership to two animals may take possession of one, if his right to such 
animal is not questioned, without prejudicing his claim to the other.

4. NEW TRIALS-Newly Discovered Testimony-Names of Witnesses.-The names of the 
witnesses by whom the party applying for a new trial expects to prove the 
alleged newly discovered matters must be stated in the affidavit.

Memorandum.-Replevin. In the Circuit Court of Fulton County; the Hon. 
JEFFERSON ORR, Judge, presiding. Declaration; pleas, (1) non cepit; (2) non 
detinet; (3) property in a third person; replications, etc.; trial by jury; 
verdict and judgment for plaintiff; defendant appeals. Heard in this court at 
the November term, 1893, and affirmed. Opinion filed April 28, 1894.


W. S. EDWARDS, pro se.

KINSEY THOMAS, of counsel for appellant.


APPELLEE’S BRIEF, H. W. MASTERS, ATTORNEY.

A principal undertaking to adopt and ratify the unauthorized act of his agent, 
must do so with a knowledge of all material circumstances, or with the intent 
to take all liabilities without such knowledge. Kerr v. Sharp, 83 Ill. 199; 
Stein v. Kendall, 1 Brad. 101; Matthews v. Hamilton, 23 Ill. 470; Reynolds v. 
Ferree, 86 Ill. 570; Proctor v. Tows, 115 Ill. 138.

If a principal receive money arising from the sale of his goods from one, even 
his agent, who acted beyond the scope of his authority as such agent, he will 
not be regarded as confirming the sale if he is ignorant of the facts. Smith 
v. Tracy, 36 N. Y. 79; Bell v. Cunningham, 3 Pet. (U. S.) 69; Evans v. Chicago 
R. Co., 26 Ill. 189.

If a ratification is relied upon as shown by implication, the acts must be 
such as clearly indicate an intention to ratify the unauthorized act, and must 
be inconsistent with a different intention and the question of ratification in 
such case is left to the jury. Farwell v. Myer, 35 Ill. 40; Barnard v. 
Wheeler, 24 Me. 412; Crooker v. Appleton, 22 Me. 131.

Because a principal on learning of the unauthorized act does not instantly 
repudiate it, the failure to do so is not ipso facto a ratification. Miller v. 
Excelsior Stone Co., 1 Brad. 273; Caswell v. Cross, 120 Mass. 545; Deland v. 
Dixon Nat. Bank, 111 Ill. 323.

A failure to disavow the acts of one who was not an agent and had no kind of 
authority, but acted merely as a volunteer, will not amount to a ratification. 
In all such cases an express ratification is necessary. Ward v. Williams, 26 
Ill. 451; Ladd v. Hildebrant, 27 Wis. 135; Kelly v. Phelps, 57 Wis. 425.

MR. PRESIDING JUSTICE BOGGS DELIVERED THE OPINION OF THE COURT.

The action was replevin by appellee to recover possession of a Jersey cow. 
Judgment for appellee upon the verdict of a jury, from which this appeal. The 
appellant pleaded, among other defenses, property in his wife, and complains 
that the jury were erroneously instructed as to the law in reference to the 
burden of proof upon that issue. The title of appellant’s wife was predicated 
on an alleged gift of the animal to her by her husband, the appellant. They 
were living together as husband and wife. The transfer was not evidenced by an 
instrument in writing, as required in such cases by Sec. 9, Chap. 68, R. S. It 
was against the rights and interest of the appellee, and therefore invalid as 
to her. Hence, the verdict as to this issue was right, and, being so, it is 
not material whether the instructions were correct or not. That the cow was 
the property of the appellee was abundantly shown by the evidence and was not 
seriously questioned. The appellant’s claim to the animal was that he had 
purchased her of the appellee’s husband. It was clearly shown that this sale 
to the appellant was without the consent and against the will of the appellee. 
It is, however, insisted that she ratified the sale, (1) by accepting the 
money, or a portion of the money received by her husband from appellant for 
the cow; (2) by accepting from the appellant a calf which the cow dropped 
after the sale. The sale of the cow was made by the husband of appellee while 
he was in a drunken condition. He returned to their home after the sale, threw 
into her lap a part of the money received for the cow, told her he had made 
the sale, went away and did not return for some days. She kept the money until 
he came back, when, at her request, he gave her a sufficient sum in addition 
to enable her to offer to return to appellant the purchase price of the cow. 
She testified that she did so offer to return the money, and that the 
appellant refused to accept the money or surrender the animal. No inference of 
ratification arises from these facts. The cow was carrying the calf when the 
contract was made between appellant and the husband of appellee. The appellant 
testified that he bought only the cow and was to surrender the calf, when 
calved. The appellee claimed both cow and calf and sought to have both 
surrendered to her. Her right to the calf was not questioned and she took it 
away. Her claim to the cow was denied, and she brought the action to recover 
it. Certainly, the appellee, asserting ownership of both animals, could take 
possession of one if her right to it was not questioned, without prejudicing 
her claim to the other. We think the verdict right upon the merits and find no 
error so prejudicial to the appellant as to demand reversal of the judgment. 
The motion for a new trial upon the ground of newly discovered testimony was 
supported only by the affidavit of the appellant. The names of the witnesses 
by whom he expected to prove the alleged newly discovered facts were not 
disclosed, and the testimony, if produced, would be but cumulative. It was not 
error to deny the motion. The judgment must be and is affirmed.

Additional Comments:
Source: Reports of Cases Decided in the Appellate Court of the State of 
Illinois; Reported by Martin L. Newell of the Springfield Bar; Vol. LV; 
Submitted at the May and November Terms, 1893, and the May Term, 1894, of the 
Third District; and the March and October Terms, 1894, of the First District; 
Chicago: Callaghan & Company, 1895

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