Beal & Simons v. The Adams Express Co.

• Decision Date: 21 March 1900
• Docket Number: 57-1899
• Citation: 13 Pa.Super. 143
• Parties: Beal & Simons v. The Adams Express Company, Appellant
• Court: Pennsylvania Superior Court

13 Pa.Super. 143

Beal & Simons v. The Adams Express Company, Appellant

No. 57-1899

Superior Court of Pennsylvania

March 21, 1900

Argued May 8, 1899

Appeal by defendant, from judgment of C.P. Mercer Co.-1897, No. 136 on verdict for plaintiffs.

Assumpsit for loss of goods. Before Miller, P. J.

The facts appear in the opinion of the court.

Defendant's sixth point and the answer thereto were as follows:

[6. Under the law and the evidence in this case the verdict of the jury should be in favor of defendant. Answer: Refused.]

Verdict and judgment for plaintiffs for $ 251.27. Defendant appealed.

Error assigned among others was above instruction, quoting it.

E. P Gillespie, of Gillespie & Pettit, for appellant. -- It is the duty of those who deal with an agent to know the terms of the agency, because what he may do outside the terms of the agency is of no binding effect upon his principal: Ludwig & Son v. Gorsuch, 154 Pa. 413.

There was no evidence to justify the admission of proof of the acts and declarations of Mr. Dauman: Whiting v. Lake, 91 Pa. 349; Grim v. Bonnell, 78 Pa. 152; Moore v Patterson, 28 Pa. 505; Hoffman v. Cumberland Valley R. R., 37 A. 214; Watts v. Devor, 1 Grant, 267; Morgan v. Wilson, 6 Kulp, 356; Butler v. Maples, 76 U.S. 766.

A naked admission of indebtedness without anything indicating the amount or nature of the debt or a promise to pay something without a reference to the sum to be paid is insufficient: Patterson v. Neuer, 165 Pa. 66; Hartranft's Est., 153 Pa. 530; Miller v. Baschore, 83 Pa. 356; Landis v. Roth, 109 Pa. 621; Kline v. Seidel, 1 Pa.Super. 22.

W. H. Cochran, with him Q. A. Gordon, for appellees. -- A just protection to persons dealing with corporations imperatively requires that the act of the agent, within the general scope of the business with which he is intrusted, shall bind the company, although the specific act may be in excess of his private instructions: Adams Express Co. v. Schlessinger, 75 Pa. 246; American Life Ins. & Trust Co. v. Shultz, 82 Pa. 46.

When some evidence has been given of the existence of an agency, it is competent to give in evidence the acts and declarations of such agent respecting the subject-matter of his authority: Stewartson v. Watts, 8 Watts, 392.

A debt may be taken out of the statute by the act of an agent done in the regular course of his business, if he has specific authority for that purpose, or if such authority be necessarily implied from the nature of his duties: Watts v. Devor, 1 Grant, 267; Patton v. Hassinger, 69 Pa. 311; Yost v. Grim, 116 Pa. 527; Palmer v. Gillespie, 95 Pa. 340.

Before Rice, P. J., Orlady, W. W. Porter, W. D. Porter and Beeber, JJ.

OPINION

W. D. PORTER, J.

An agent of plaintiffs, on August 30, 1890, delivered to the defendant, a common carrier, at Kane, a lot of butter in tubs, consigned to B. E. Cartwright at Brockport, on the Toby branch of the New York, Lake Erie & Western Railroad. The line of transportation of the defendant company did not reach Brockport and the goods were to be delivered to a connecting carrier at Brockwayville. The goods ought to have reached their destination at Brockport on August 30, 1890, but they did not arrive, and within a few days after that time it was known to the plaintiffs that the property was lost. The right of action in this case accrued early in the month of September, 1890, but the action was not brought until December 31, 1896. The defendant pleaded nonassumpsit and the statute of limitations. At the trial in the court below the plaintiffs sought to take the case out of the operation of the statute of limitations by proving a promise to pay made, within six years prior to the bringing of the suit, by an employee of the defendant company, and the defendant offered evidence tending to establish a delivery of the goods to the connecting carrier at Brockwayville. The court submitted the evidence as to a delivery to a connecting carrier to the jury, with proper instructions, and the assignments of error upon that branch of the case are without merit.

The testimony upon which the plaintiffs relied to escape the bar of the statute of limitations was alleged to establish a promise to pay made by W. W. Dauman, an employee of the defendant company, who was designated as a " route agent." The question of the authority of this agent of the defendant company to bind his principal by such a promise would be pivotal of the case if the testimony as to his promise was sufficient. The plaintiffs, in order to show the authority of Dauman, offered in evidence a letterhead used by him, upon which was printed " Adams Express Company, Pennsylvania Department, W. W. Dauman, Route Agent," and they called a witness who testified that Dauman was a route agent but they offered no evidence whatever as to the character and extent of the duties and powers attached to that position. There was evidence that he had been seen to enter express cars while the train was in motion, and had been seen about the offices of the express company at railroad stations. Outside of his action in the present case the plaintiffs produced no evidence whatever as to the character of the powers delegated to this employee of the company. The defendant put Dauman upon the stand and he testified as to the powers, duties and responsibilities of his office:"

Q. What is your business?

A. I check up offices, trace lost goods, solicit business and look after train messengers." It was not denied by defendant that Dauman was a route agent, but they denied his authority to bind the company by any such promise as alleged by the plaintiffs, and the only direct testimony upon that question is that of Dauman himself, who, in addition to the above enumeration of his duties, testified as follows:"

Q. Did you tell them, or either of them, not to bring a suit against the Adams Express Company, and that either you or the express company would indemnify them against loss?

A. I did not. I had no authority to do so.

Q. You say you trace goods that are lost. After you have traced them to whom do you make report?

A. To my superintendent.

Q. The mere tracing is the end of your duty?

A. Yes, sir.

" This is the sum total of the testimony as to the authority of Dauman to bind the company, for he himself made no representation to the plaintiffs as to his powers touching the subject-matter. The plaintiffs do not testify that he represented that he had any authority to make a contract touching the matter in controversy, they simply say that he did make such a contract. Was there any evidence here to warrant the court in submitting to the determination of the jury the question of Dauman's authority to bind his principal? The act of an agent is the act of his principal so long as it is within the scope of the authority delegated but a delegation of certain specific powers gives no authority to bind the principal generally. The burden is upon him who seeks to avail himself of the acts of an agent, in order to charge the principal, to prove the authority under which the agent acted, to establish the agency and the extent thereof. The admissions of agents concerning the transactions in which they are employed are, for many purposes, equivalent to the acknowledgment of the employer himself, but before such admissions or declarations can be given in evidence the fact of agency must be proved. It is not sufficient that the evidence establish that the agent is in some capacity employed by the principal, it must be sufficient to warrant a finding that the agent was authorized to represent the principal in the matter in controversy. This may be done by showing the agent to have been authorized to represent the principal in all matters, or that he was specially delegated to represent the principal in the matter under investigation, or that the particular department of the business of the principal to which the subject-matter in controversy appertained had been committed to the management of the agent. The evidence of the delegation of authority may be the written instructions of the principal, or parol testimony showing a regular course of dealing with the knowledge of the principal, or that an agent of limited powers has been in the habit of managing the business committed to his care in a manner involving an enlargement of his powers, with the knowledge and acquiescence of his principal. The authority cannot be proven by the declarations of the alleged agent, nor by his acts done without the knowledge or authority of the principal: Hays v. Lynn, 7 Watts 524; Whiting & Co. v. Lake, 91 Pa. 349; Moore's Exrs. v. Patterson, 28 Pa. 505; Telephone Co. v. Thompson, 112 Pa. 118. An extensive business renders it necessary that the management of the departments should be committed to agents, who shall deal with the public. Those agents within the limits of the department committed to their care represent the principal. The acts of such an agent within the general scope of the business with which he is entrusted are binding upon his principal. But the burden is upon the party seeking to charge the principal to establish by evidence the authority of the agent to act for the principal in the particular class of business to which the subject-matter of controversy belongs. When it is established by evidence that the agent had authority to transact the business out of which the controversy has grown, the principal may be held responsible, although the particular acts done are in excess of his private instructions. If it be shown that the...