Birmingham News Co. v. Birmingham Printing Co.

• Decision Date: 16 April 1925
• Docket Number: 6 Div. 370
• Citation: 213 Ala. 256,104 So. 506
• Parties: BIRMINGHAM NEWS CO. v. BIRMINGHAM PRINTING CO.
• Court: Alabama Supreme Court

104 So. 506

213 Ala. 256

BIRMINGHAM NEWS CO. v. BIRMINGHAM PRINTING CO.

6 Div. 370

Supreme Court of Alabama

April 16, 1925

Rehearing Denied May 28, 1925

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

Action on common count by the Birmingham Printing Company against the Birmingham News Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Affirmed.

See also, 209 Ala. 403, 96 So. 336.

R.B Evins, of Birmingham, for appellant.

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

BOULDIN J.

The case was tried below on the common count "for goods, wares, and merchandise sold defendant by plaintiff," and plea of the general issue. The subject-matter of the transaction was the making, printing, binding, and delivering an agreed number of copies of a book referred to in the evidence as a "Buyers' Guide," and styled on the outside cover: "The Birmingham News 1920-21 Buyers' Guide of Birmingham, Bessemer & Ensley, Together With Numerical Telephone Directory." The plaintiff, Birmingham Printing Company, executed the work under a contract made by or through A.V. Owen. The real issue is whether the defendant, Birmingham News Company, is bound by Owen's acts. Plaintiff claims such liability upon three legal grounds: (1) That Owen was the agent, express or implied, authorized to make the contract for defendant. (2) That defendant so held out Owen as agent authorized to make the contract that defendant is estopped to deny the agency. (3) That defendant ratified the contract.

On the former appeal, Birmingham News Co. v. Birmingham Printing Co., 209 Ala. 403, 96 So. 336, the evidence was reviewed and the principles of law announced applicable to these several issues. It was held the evidence did not support the claim of agency, express or implied, nor the theory of estoppel, but a case was made for the jury on that of ratification.

On the second trial the court below, in his oral charge and his rulings on instructions requested by defendant, again submitted the case to the jury upon all the issues. These rulings are presented for review.

For the contract relation existing between the News and Owen, we refer for details to the former opinion. Suffice to say Owen's relation was that of a contractor with the duty to have the Buyers' Guide printed on his own account, and not as agent at the expense of the News.

Dealing with the evidence found in the present record, an important question is presented upon what passed between the News and the Printing Company before the latter entered into the contract. As presenting a question for the jury vel non on agency in fact, or on the theory of estoppel, the case turns much on the testimony of Paul Watkins, the soliciting agent of Birmingham Printing Company. This witness testifies that having learned of a purpose to print the Buyers' Guide, and before he quoted a price for his company, he saw Mr. J.C. Clark, whom witness designates as business manager of Birmingham News, with reference to the order. Clark says he was secretary, treasurer, auditor, credit manager, and purchasing agent of Birmingham News Company. It is not questioned he was the proper officer to approach on the subject. Watkins says:

"I went to Mr. Clark and told him that I had been called on to bid on a job that I understood was to be for the Birmingham News, and I wanted to find out whether the job was all right or not, whether we would be safe on it, and he told me just what I told you a while ago; said, 'Yes, that is one of the things that we inherited from the Birmingham Ledger, Mr. A.V. Owens is handling the whole proposition, and he is over in the Ledger Building.' So I told him: 'If it's all right, I want to bid on it and want you to help me get the order if you can.' That is as much as I remember of it. We talked for a few minutes, but I don't remember all that was said. He said that I was safe in going ahead with the order. I don't remember the exact words I used, but I wanted to find out if the Birmingham News was going to get out the Buyers' Guide, and I asked Mr. Clark, and he said, yes, that that was one of the things that they inherited when they took over the Birmingham Ledger, and said they would have to get it out, or words to that effect. I don't remember the exact words. I says: 'Well, I want you to help me to get the order; use your influence to help me get the order,' or something of that kind, 'and I wanted to see you and make sure it was all right before I put in any bids for it.' He says, 'Well, if you get the order, it's all right,' but he told me I would have to take up getting the order with Mr. Owen."

The witness further testifies he then took up the matter with Owen, submitted a proposal in writing, addressed to "Mr. A.V. Owen, Mgr. Birmingham News, Buyers' Guide Dept.," and advised Owen, "We will have to have an order from the Birmingham News before we proceed with it," and plaintiff received through the mails, written on Birmingham News stationery, the following:

"Your bid for printing the News Buyer's Guide & Numerical Telephone has been accepted and we will have some copy for you in a few days.

"[Signed] A.V. Owen, Mgr."

No other confirmation was received. Witness did not know Owen before the transaction; did not know the contract between him and the News; knew he was furnished an office by the News; had known and done business with Mr. Clark. The transaction was conducted wholly with Owen after witness was referred to him.

As between principal and agent the fact of agency and its extent rests upon the mutual assent of the parties. If an agency is tendered, it must be accepted before the relation is established inter sese.

Proof of agency may be made as other questions of fact, and so may be implied from the known conduct and acquiescence of the parties. But the facts must lead to the reasonable conclusion that mutual assent exists.

As between a principal and third persons an agency in fact may exist without the direct assent of the agent. Thus, if one takes up a matter of business with another, and is referred to a third person as agent having the business in hand, and directed to take up the matter with him, the third person becomes the agent....