Clifton v. Ross

28 S.W. 1085, 60 Ark. 97, 1894 Ark. LEXIS 16

• Court: Supreme Court of Arkansas
• Decided: December 22, 1894
• Status: Published

Opinion

Riddick, J.,

(after stating the facts). The question for us to determine is whether the circuit court erred in instructing the jury that if no price was agreed upon for the mill, they must find for defendant. To constitute a sale it is not necessary that the parties agree on a price, for, if no price is fixed by the parties, the law implies that it shall be what the thing sold is reasonably worth. This is said to be elementary law. Note to Bennett’s Ed. Benjamin-on Sales, 90; Taft v. Travis, 136 Mass. 95.

But i£ the testimony of Clifton is true, he did not sell the mill to Ross, but purchased it for him; and it is a general rule of law that all reasonable and necessary outlays and advances paid by an agent for his principal in the course of his employment must be repaid by the latter. Wharton, Ag. secs. 313 and 314; Mechem’s Cases on Agency, 543; Bibb v. Allen, 149 U. S. 481.

A request to undertake an agency or employment, the proper execution of which involves the expenditure of money on the part of the agent, operates not only as an implied request on the part of the principal to incur such expenditure, but also as a promise to repay it. Mechem’s Cases on Agency, 544.

If, without being induced by fraud or misrepresentation on the part of Clifton, Ross requested Clifton to purchase a mill, and Clifton, in the execution of such an undertaking, or as a result of it, was compelled to pay for the mill, then Ross is liable for such expenditure, if the same be reasonable, and this whether there was any price agreed upon or not. In the absence of any agreement or direction about the price to be paid, Clifton would, in such a case, ordinarily have the right to pay the fair market price for such mill, and to recover the same from Ross.

The court properly held that, as between Clifton and Ross, such a transaction did not come within the statute of frauds, but, for the reasons stated above, we think the court erred in giving instruction numbered five. Its judgment is therefore reversed, and the cause remanded for a new trial.

Bunn, C. J.', being disqualified, did not participate.