RANNEY, Administrator,
v.
BARLOW & Another.
Supreme Court of United States.
Argued October 20, 21, 1884. Decided November 3, 1884. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO.*214 Mr. J.M. Adams and R.P. Ranney for plaintiff in error.
Mr. Stevenson Burke (Mr. William B. Sanders was with him) for defendants in error.
MR. JUSTICE WOODS delivered the opinion of the court. He stated the facts in the foregoing language, and continued:
We think there was error in the charges complained of. To test their correctness we must assume the truth of the facts which the testimony submitted to the jury tended to prove. It was the duty of the court to submit to the consideration of the jury the testimony adduced by the defendant to sustain the defences set up in his answer, and the charge should have been based on the hypothesis that the defences which the testimony tended to prove were proven. The evidence tended to show that no fraud was practised by the defendant in procuring *215 the power of attorney; in fact, the charge proceeds on this assumption; it tended to show that the plaintiffs, after full conference with the defendant, consented that he might secretly conduct the negotiations for the sale, that he might manage the sale of the property in his own way, and that he should be free to dispose of his own half as he pleased; that, in case he sold their half for $200,000, he might sell his own half for any price he could get. If the plaintiffs gave their consent in advance of any sale, it was immaterial to them what price the defendant got for his share of the land, and he was under no obligation to disclose the price to the plaintiffs and ask their consent to retain it. The effect of the charge of the court was to withdraw from the jury all the evidence tending to show the antecedent assent of the plaintiffs, fairly obtained, to the sale made by the defendant, and to instruct the jury that nothing but their subsequent assent could be effectual. This was error. Adams v. Roberts, 2 How. 486; Reese v. Beck, 24 Ala. 651; Grube v. Nichols, 36 Ill. 92; Chappell v. Allen, 38 Missouri, 213, 220.
The charge having assumed that there was no fraud in the procuring of the power of attorney, and the defendant having submitted testimony tending to show that there was no fraud in his doings after the power of attorney was procured, but that whatever was subsequently done by him in making the sale was done with the consent of the plaintiffs given in advance, it was error to charge the jury that the plaintiffs were entitled to recover, unless the defendant informed the plaintiffs at what price he could sell or had sold his share, and they renewed their consent that he might retain it.
For the error indicated
The judgment of the Circuit Court must be reversed, and the cause remanded, with directions to grant a new trial; and it is so ordered.