64 N.W. 1100 (Neb. 1895), 7367, Johnston v. Milwaukee & Wyoming Investment Company

Docket Nº:7367
Citation:64 N.W. 1100, 46 Neb. 480
Opinion Judge:IRVINE, C.
Party Name:ADDISON B. JOHNSTON ET AL. v. MILWAUKEE & WYOMING INVESTMENT COMPANY
Attorney:John L. Webster, for plaintiffs in error: J. W. Sparks and George H. Noyes, contra:
Case Date:November 19, 1895
Court:Supreme Court of Nebraska
 
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Page 1100

64 N.W. 1100 (Neb. 1895)

46 Neb. 480

ADDISON B. JOHNSTON ET AL.

v.

MILWAUKEE & WYOMING INVESTMENT COMPANY

No. 7367

Supreme Court of Nebraska

November 19, 1895

ERROR from the district court of Merrick county. Tried below before SULLIVAN, J.

REVERSED AND REMANDED.

John L. Webster, for plaintiffs in error:

A manager of a live stock company would have authority to sell its cattle without any provision in the charter or by-laws creating the office of manager. (Hamm v. Drew, 83 Tex. 77.)

Every person dealing with a corporation is bound to take notice of its by-laws as well as of its articles of incorporation. (Bockover v. Life Association of America, 77 Va. 91; Bocock v. Alleghany Coal & Iron Co., 82 Va. 920; Relfe v. Rundle, 103 U.S. 222.)

The presumption is that an agent in charge of property at a point remote from the home office of the company is clothed with authority to transact all business touching such property. (Rathbun v. Snow, 123 N.Y. 343; Hamm v. Drew, 83 Tex. 77; Whitaker v. Kilroy, 70 Mich. 638.)

When the plaintiff company made Adams its agent in charge of its property in Wyoming, it necessarily clothed him with the functions of a general agent, and gave him apparent authority to sell the property and should not now be heard to say that the powers of Adams were special, and not general. (Grafius v. Land Co., 3 Phila. [Pa.], 447; Lee v. Pittsburg Coal & Mining Co., 56 How. Pr. [N. Y.], 376; Duncan v. Hartman, 143 Pa. 595; Spangler v. Butterfield, 6 Colo., 356; Sacalarias v. Eureka & P. R. Co., 18 Nev. 155; Adams Mining Co. v. Senter, 26 Mich. 73; Ceeder v. Loud Lumber Co., 86 Mich. 541; State v. Heckart, 49 Mo. App., 280.)

The sale of the cattle by Adams was within the scope of his apparent authority. (Atlantic & P. R. Co. v. Reisner, 18 Kan. 458; Louisville, E. & St. L. R. Co. v. Mc Vay, 98 Ind. 398; Barnett v. Gluting, 3 Ind. App., 421; Over v. Schiffling, 102 Ind. 196; Badger Lumber Co. v. Ballentine, 54 Mo. App., 180; Austrian v. Springer, 94 Mich. 343; Banner Tobacco Co. v. Jenison, 48 Mich. 459; National Furnace Co. v. Keystone Mfg. Co., 110 Ill. 427; Louisville Coffin Co. v. Stokes, 78 Ala. 372; Talladega Ins. Co. v. Peacock, 67 Ala. 253.)

In support of an argument in favor of the contention that the Milwaukee & Wyoming Investment Company ratified the sale, reference was made to the following authorities: Hughes v. Ins. Co. of North America, 40 Neb. 627; Cook v. Tullis, 18 Wall. [U. S.], 338; Starks v. Sikes, 8 Gray [Mass.], 609; Dispatch Line v. Bellamy Mfg. Co., 12 N. H., 205; Planters Bank v. Sharp, 4 S. & M. [Miss.], 75; McMahan v. McMahan, 13 Pa. 376; Ogden v. Marchand, 29 La. Ann. 61; Charles v. State, 11 Ark. 389; United States Express Co. v. Rawson, 106 Ind. 215; Goss v. Stevens, 32 Minn. 472; Ruggles v. Washington County, 3 Mo. 496; Shoninger v. Peabody, 57 Conn. 42; Russ v. Telfener, 57 F. 973; Persons v. McKibben, 5 Ind. 261; Perkins v. Boothby, 71 Me. 91; Mayor v. Ray, 19 Wall. [U. S.], 484; Taylor v. Conner, 41 Miss. 722; First Nat. Bank of Las Vegas v. Oberne, 121 Ill. 25; Baer v. Lichten, 24 Ill.App. 311; Thompson v. Peck, 115 Ind. 512; Moriarity v. Stofferan, 89 Ill. 528; Harding v. Parshall, 56 Ill. 219; Nichols v. Shaffer, 63 Mich. 599; First Nat. Bank of Trenton v. Badger Lumber Co., 54 Mo. App., 327; Southern Oil Works v. Jefferson, 70 Tenn. 581; Gelatt v. Ridge, 117 Mo. 555; Long v. Osborne, 59 N.W. [Ia.], 14.

J. W. Sparks and George H. Noyes, contra:

The plaintiff at the time of the commencement of this suit was the owner and entitled to the possession of the cattle replevied, and was entitled to a verdict, unless the defendants procured a valid title by purchase from Adams. (Levi v. Booth, 58 Md. 305.)

The burden of proof to establish that Adams had been held out by the plaintiff as possessing an apparent authority greater than his real authority, and as having an authority to sell the cattle, rested upon the defendants. (Baltimore & Ohio Employees Relief Association v. Post, 122 Pa. 579; Hays v. Lynn, 7 Watts [Pa.], 525; American Life Ins. & Trust Co. v. Schultz, 82 Pa. 46; Bond v. Pontiac, O. & P. A. R. Co., 62 Mich. 643.)

The mere fact that the plaintiff had entrusted the care, management, and possession of the cattle to Adams, gave him no authority to sell them. Nor did the directions to ship the cattle to commission merchants, to be sold by them in the market, give any authority to him to make a sale. (Warder v. Rublee, 42 Minn. 23.)

The defendants could not base any right in this action upon the ground that they dealt with Adams as having apparent authority to sell the cattle, unless it appeared from the evidence that they knew of facts giving him such apparent authority, and acted upon such appearances in the transaction of purchasing the cattle. (People v. Bank of North America, 75 N.Y. 561; Eckart v. Roehm, 43 Minn. 271.)

Although authority on the part of an agent may, in proper cases, be implied from the words and conduct of the parties, or from the circumstances of the case, yet the extent of the authority so implied cannot exceed the necessary and legitimate effect of the facts from which it is inferred, but must be limited to the performance of like acts under like circumstances. The authority, if implied at all, can only be implied from facts. (Kane v. Barstow, 22 P. [Kan.], 588.)

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