Birmingham News Co. v. Birmingham Printing Co.

• Decision Date: 19 April 1923
• Docket Number: 6 Div. 862.
• Citation: 96 So. 336,209 Ala. 403
• Parties: BIRMINGHAM NEWS CO. v. BIRMINGHAM PRINTING CO.
• Court: Alabama Supreme Court

96 So. 336

209 Ala. 403

BIRMINGHAM NEWS CO. v. BIRMINGHAM PRINTING CO.

6 Div. 862.

Supreme Court of Alabama

April 19, 1923

Rehearing Denied May 8, 1923.

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action by the Birmingham Printing Company against the Birmingham News Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911 p. 449, section 6. Reversed and remanded.

Percy Benners & Burr, of Birmingham, for appellant.

F. D. McArthur, of Birmingham, for appellee.

McCLELLAN J.

The action is assumpsit, instituted by the appellee, a partnership conducting a printing business, against appellant. The complaint declared for work and labor done and on an account accruing from the printing by plaintiff of the "Book Form Birmingham News Buyers' Guide," to be mentioned. Judgment, on verdict, was awarded plaintiff (appellee).

On April 19, 1920, the appellant, Birmingham News, purchased the Birmingham Ledger. At that time the Ledger had a contract with A. V. Owen. This contract related to advertising in the Ledger and the republication of this matter, with other advertisements, in a "Buyers' Guide" in book form. Three days after the purchase of the Ledger by the News, the News made another, though similar, contract with Owen, in which it was recited that the News contract with Owen annulled the previous contract with the Ledger. The contract of Owen with the News obligated Owen to furnish the matter for the "Birmingham News Buyers' Guide" for publication in two or more issues of the daily News; to secure all advertisements for the Buyers' Guide without cost to the News; to pay the News a stipulated price, on stipulated terms, for the publication of the matter in the News; to attend to all collections for advertisements for said Guide "except unpaid yearly accounts and any balance left unpaid from first two publications"; "to produce the Buyers' Guide in book form for free distribution," the number to be twice that of the advertisements for the Buyers' Guide; "to solicit all the advertisements in said Buyers' Guide for term contracts after the first publication at rates specified by the party of the second part, at no expense of party of the second part except that the party of the second part shall pay the party of the first part 25 per cent. commission on all accepted contracts, same to be applied to payment of first two publications of the Guide and balance to be paid quarterly as collected;" and to collect all doubtful contracts for the News; and the News obligated itself to furnish Owen office space in the Ledger building, typewriter and "four main lines" during the stipulated or later extended period of solicitation; to proofread the copy delivered for publication in the News; to publish notices regarding the Buyers' Guide, promoting its success; to make periodic settlements with Owen; "to loan" Owen "type or plates of the Guide for reproduction in book form"; and Owen obligated himself to pay the News 50 per cent. of any display advertising secured by the News for the "Book Form Buyers' Guide."

The controlling question is whether the defendant is liable for the acts of Owen in respect of the contract he made with plaintiff for the printing of the "Book Form Birmingham News Buyers' Guide."

The contract between the News and Owen did not constitute the latter the agent of the former to contract for the reproduction of the Book Form Buyers' Guide. There is no evidence otherwise, or reasonable inference therefrom, tending to show that the News expressly constituted Owen its agent for that purpose. The allusion in the statement recited by plaintiff's representative as having been made by the business manager of the News (Clarke) was to the Ledger-Owen contract which was taken over by the News as the purchaser of the Ledger. That statement did not conduce, in any degree, to establish Owen's agency, for the News, to contract with plaintiff to print in book form the Buyers' Guide. Likewise the discussion between plaintiff's representative and Clarke did not contribute to establish Owen's agency or authority to contract with plaintiff, for the News, to print the Guide in book form. That both the mentioned statement and the discussion disclosed the business manager's knowledge of the plan to print the Guide in book form, and that the plaintiff was concerned in securing or even had secured the contract to do that work is clear; but that knowledge did not itself effect, in any degree, to show that Owen's relation to the News was that of an agent to consummate a contract with plaintiff to print the Guide and thereunto obligate the News as principal to Owen as agent.

There being no evidential basis in which to found a conclusion that Owen was in fact commissioned to represent the News in respect of the contract Owen made with plaintiff, the responsibility of the News for Owen's act in the particular must rest, if it exist, either in an estoppel precluding the News, the asserted principal, to deny Owen's representative character in the premises, or in an implied agency, resulting from conduct, attributable to the News, upon which the plaintiff was justified in concluding that Owen was the representative of the News in respect of the contract in question. 31 Cyc., pp. 1217-1221. As noted in the text cited, there is a material distinction between the doctrines applicable to an asserted principal's liability through estoppel and liability consequent upon such conduct as authorized a third party to act on the assumption that the asserted principal had invested the asserted agent with authority to engage for and in behalf of the asserted principal. 1 Mechem on Agency (2d Ed.) § 241; 31 Cyc. supra.

It is manifest, from the evidence presented by plaintiff, that it established no estoppel in consequence of which liability of the defendant, for the act of Owen, might be even contingently pronounced.

"Estoppel," by holding out another as the agent of the asserted principal, "is always a matter personal to the individual asserting it and he must therefore show that he was misled by the appearances relied upon. It is not enough that he might have been, *** so misled. It must also appear that he had reasonable cause to believe that the authority existed; mere belief without cause, or belief in the face of facts that should have put him on his guard is not enough."

The presently pertinent general rule is thus stated in section 246 of 1 Mechem (2d Ed.):

Whenever "a person has held out another as his agent authorized to act for him in a given capacity; or has knowingly and without dissent permitted such other to act as his agent in that capacity; or where his habits and course of dealing have been such as to reasonably warrant the presumption that such other was his agent authorized to act in that capacity; whether it be in a single transaction or in a series of transactions his authority to such other to so act for him in that capacity will be conclusively presumed to have been given, so far as it may be necessary to protect the rights of third persons who have relied thereon in good faith and in the exercise of reasonable prudence; and he will not be permitted to deny that such other was his agent authorized to do the act he assumed to do, provided that such act was within the real or apparent scope of the presumed authority."

It appears from the plaintiff's evidence, referable to this particular inquiry, that, with knowledge of Owen's then recent arrival in Birmingham, the plaintiff would not proceed with the order for this printing until "we [plaintiff] had an order from the Birmingham News"; that "confirmation in writing" from or by the News was required by the plaintiff before entering upon the execution of the contract with Owen for printing the book. The effect of this testimony was to exclude the idea that plaintiff relied upon any act or conduct of the asserted principal, the News, other than that to be afforded by "confirmation in writing" from or by the News; which, if...