October 1, 2012

King, et al. v. Ballou, Pulaski, 1903

KING et al. v. BALLOU.


72 S.W. 771; 1903 Ky. LEXIS 412; 24 Ky. L. Rptr. 1946

March 11, 1903, Decided

Appeal from circuit court, Pulaski county.
Action by Joseph Ballou against King & King for unpaid purchase money and the correction of a mistake in a title bond. Judgment for plaintiff, and defendants appeal.


COUNSEL: O. H. Waddle, for appellants.

W. A. Morrow, for appellee.




 [*771]  O'REAR, J. - Appellee sold to appellants two lots of land in the town of Burnside, and executed a bond for title. The purchase money was not then paid. This suit was by appellee to collect the balance of the purchase money owing, and to correct what he alleges was a mistake in the bond for title. The transaction took place between a brother of appellee, representing him as his agent, and a member of the firm of appellants. The agent wrote appellee that he had sold to appellants two lots in Burnside for $185. Appellee drew up and signed the bond for title, in which he described the lots as being in the town of Burnside, one on the north of the depot and the other on the south. The evidence is conclusive that the agent did not sell, nor did appellants buy, the last-named lot. Nor did either of the parties to the trade understand that that lot was included. This mistake seems to have grown out of the traders  [**2] calling the first-named lot, "lying on both sides of the railroad," two lots, while appellee regarded it as one lot only.

Appellee's agent testifies to the particulars of the sale, and says that the bond mistakenly includes a lot not intended to be sold. The member of the firm with whom the trade was made did not testify. Instead, another, the general manager of appellant firm, testified that he executed the note, and that the purchase was made subject to his ratification; that appellant firm is composed of the wife and the sister-in-law of the manager; that when his wife reported that she had bought the lot she did not claim to have bought the one south of the depot; that when he saw the bond he approved the purchase, relying on its recitals. He says that his wife wanted to buy the lot, but that he did not.

While an agent may buy subject to his principal's ratification, when the principal buys it is immaterial whether the agent ratifies or approves it or does not. Where a married woman is in business on her own account under the statute now in force (section 2128, Ky. St.), she can buy land and bind herself and her estate for it, even though her husband disapproves the transaction.  [**3] It therefore appears that the understanding appellants' agent had about the trade was not material, as he was not making it. But, appellee's agent and the purchaser, Mrs. King, having agreed about the lot and the bond containing an unquestioned mistake as to one of the lots named, the circuit court properly corrected the error and rendered judgment for the balance of the unpaid purchase money.

Judgment affirmed, with damages.

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