Gabby v. Roberts, Master Commissioner

35 S.W.2d 284, 237 Ky. 230, 1931 Ky. LEXIS 578

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: February 3, 1931
• Status: Published

Opinion

Opinion op the Court by

Judge Willis

Affirming.

The question presented by this appeal is the extent of the power conferred by a letter from B. F. Gabby to C. B. Travis, stating; “I hereby authorize you to represent me at the Hugh French sale on September 17th, or whenever it is. ’ ’ Acting upon the authority contained in that letter, C. B.' Travis attended a judicial sale of the Hugh French property, submitted a bid in the name of B. F. Gabby, and, when the property was sold to him at his bid, executed bonds for the purchase price, signing the name of B. F. Gabby by himself as agent. The circuit court held that Gabby was bound and he has prosecuted an appeal.

The background of the case is relied upon by both parties as affecting the construction of the letter. Gabby was residing in Madison county, and Travis, in a friendly way, but not as a paid agent, had been handling- some business for him in Fulton county. The judgment under which the land was sold was a joint one against French, Travis, and another. Travis was insolvent, but it appears that the commissioner took him as surety for Gabby on the sale bonds. The commissioner saw the letter before he accepted the bid or the bonds submitted.by Travis. It is argued that the letter did not in express terms authorize Travis to bid upon the property, or to sign the name of Gabby upon the bonds. It is suggested that, the result of the sale being to relieve Travis of a part of his obligation under tbe judgment, he bad an adverse interest to Gabby to be served by bidding in tbe land. Tbe relationship between Gabby and Travis was friendly, and such interest as Travis bad was 'known to Gabby wben be wrote tbe letter. Furthermore, it is difficult to see bow Travis was assisting or helping himself by bidding as be did at this sale. Tbe amount bid by Travis was less than tbe appraised value of tbe property, and merely paid tbe prior liens so that whatever judgment Gabby bad against Travis and French remained unsatisfied by any proceeds of tbe sale.

In construing tbe writing, tbe intent of tbe parties must be ascertained and given effect. 2 C. J. 555. It is difficult to conceive of any meaning of an authority to represent a party at a judicial sale other than to do what tbe party himself might do to promote or to protect bis interest, if present, in person. Gabby testified that he-did not authorize Travis to buy land for him, but tbe letter “was merely asking him to collect all of tbe money be could on the Hugh French note.”

It is not apparent bow anything in tbe letter would lend plausibility to that explanation. It was not likely that any money could be collected at tbe sale, as tbe law requires judicial sales of property to be made on credit; and, even if tbe money bad been collected after tbe sale bad been made on credit, that could not be done, or tbe money disbursed by the commissioner, until tbe sale bad been confirmed by tbe court and a distribution ordered. All that could be done for another at a sale would be to bid until tbe property brought its fair value.

“To represent,” in its ordinary usage, must be understood to mean ‘ ‘ as standing in tbe place, or supplying tbe place, or performing tbe duties, or exercising the right, of tbe party represented; to speak or act with authority on behalf of another.” Webster’s New International Dictionary.- Tbe legal definition is tbe same. 34 Cyc. 1619. The authority conferred upon Travis was a very broad one, and we have no doubt that it was intended to, and did, vest in him, tbe right and power to bid upon tbe property and to execute tbe bonds therefor, wben be became tbe successful bidder. Cf. Welch v. McKenzie, 66 Ark. 251, 50 S. W. 505.

Tbe judgment is affirmed.