Brutinel v. Nygren

Decision Date10 February 1916
Docket NumberCivil 1469
PartiesMRS. M. BRUTINEL, Appellant, v. J. E. NYGREN, Appellee
CourtArizona Supreme Court

APPEAL from a judgment of the Superior Court of the County of Greenlee. A. G. McAlister, Judge. Reversed and remanded.

Mr. L Kearney, for Appellant.

Mr. E V. Horton, for Appellee.



Two important doctrines familiar to the law of agency come forward for consideration in this case: The one has to do with the appointment of an agent and the nature and extent of his authority; the other relates to the doctrine of ratification and agency by estoppel. In order to make this judgment intelligible in principle and in results, we shall first try to ascertain and summarize the ultimate or cardinal facts to be gleaned from the record, without an attempt to give even a moderate proportion of the details. Then we shall discuss and apply the law as we understand it. The court in this case, and properly so, allowed great latitude in the admission of testimony from which the existence of an agency and the authority of such agent to do the particular act in controversy may be inferred. It is our duty to give this evidence its full scope, with every fair and reasonable inference that may be derived from it, and then say whether the judgment is supported by the law and the facts.

The appellant, Mrs. M. Brutinel, is a French woman, with but little knowledge of the English language. She was the owner of a drug-store on Chase creek in the town of Clifton. Mr. C P. Dunn, a druggist by profession, is her son-in-law. Mr. Dunn induced Mrs. Brutinel to purchase the drug-store, and on the faith of his promise to manage the business she invested her money in it. Some time after the purchase of the drug-store Mr. Dunn decided to leave Clifton to engage in other business. Because he had been instrumental in getting Mrs. Brutinel to go into the drug business on his promise to manage it for her, and having decided to leave Clifton, Mr. Dunn wished to obtain for Mrs. Brutinel the return of her investment. To this end he induced Mrs. Brutinel to allow him to find a purchaser for the business, which she did, with the understanding that any purchaser he might procure would buy it upon terms and conditions satisfactory to her. In the latter part of May, 1913, Mrs. Brutinel sold the drugstore to Mr. David Robbins and Mr. W. A. Riker for $4,000, executing to them her bill of sale conveying the property; the purchase money in part being evidenced by promissory notes secured by a chattel mortgage. The appellee, Mr. J. E. Nygren, who is also engaged in the drug business, claiming that Mrs. Brutinel is indebted to him on account of the transaction, brought this action to recover $1,450 for his services. The employment of Mr. Nygren had its origin in the following letter written to him by Mr. Dunn:

"Clifton Drug Company, Mrs. M. Brutinel, Prop.

"Clifton, Arizona, February 13 -- 12.

"Mr. Nygren:

"Received your letter to-night. Also the other reached me some time ago, which I immediately answered by wire, care Owl Drug Store. I figured that anyway Wayland would know just where to reach you. Not receiving answer to the wire, I concluded you had decided to call it off. In the wire I quoted you a price of 850.00 on the fixtures exclusive of jewelry fixtures. These together with space I have rented to Mr. Miller, and he is open and doing business. Of course, since quoting you the above price, I have continued making preparations to open up, and now expect to open about next Tuesday or Wednesday. The outlook is certainly very favorable here. Every one seems to be kicking at the new manager down below. I have gone to considerable expense in making the store presentable, repainted and papered throughout, put in new linoleum and new set wiring and new electric fixtures. The store will be as good as new and will look better than it ever did when we reopen. I feel now it would not justify me to take less than $1,000.00 for fixtures, and stock to be invoiced at wholesale cost. If you cared to make this deal on this basis, would allow you 5%, or if you can get over $1,000 for fixtures, which you should be able to do, you could have all above this amount. The fixtures and fountain together cost originally at least $2,500.00 The stock I have bought since is only staple goods and in moderate quantities. Probably stock will run $1,000.00 in all, making the whole a $2,000.00 proposition. I do not think the outfit, everything considered, could be beat at this price anywhere, and I feel confident I could do some better in short time if I hold it. If you decide to do anything let me know at once, as I am carrying ads in several big daily papers and will sell first favorable opportunity. Will make terms on half, if desired, and if party is reliable. With best wishes, I am,

"Your truly,

"C. P. DUNN.

"Miller pays $25.00 mo. rent. This would make drug dept. rent $600.00 month."

Mrs. Brutinel was never informed of the content of this letter. She had no knowledge whatever that it had been written. She never knew anything at all at any time about any contract or promise or transaction which Mr. Dunn had or was having with Mr. Nygren. Indeed, she never knew of Mr. Nygren, or that he was claiming any remuneration from her, until the summons and complaint were served upon her in this action. She never employed the plaintiff, but he was employed by Mr. Dunn. True it is that Dunn was her agent, authorized to manage her drug business; and true it is that he was her agent specially authorized to find a purchaser for the business, the sale to be made upon terms and conditions satisfactory to appellant. Dunn had no special authority and no power to conclude a contract for the sale and purchase of the drug business. His authority was expressly limited to finding a purchaser satisfactory to the principal. The distinction is here to be noted between the authority given to an agent to sell, and the authority given to an agent merely to offer for sale. There is not a scintilla of evidence that the authority of Dunn included the authority to employ the appellee at the expense of the appellant, unless such a power may be implied from his agency to manage the drug business and his subsequent special authority to find a satisfactory purchaser for it. Mr Dunn testified that when he wrote the letter to Mr. Nygren, which is copied herein, he was not acting for Mrs. Brutinel, but solely on his own initiative, for himself alone; that he never told her anything about it, and if there was any obligation incurred it was his own, and not Mrs. Brutinel's. Among other instructions, the court gave the following:

"You are instructed that if you believe from the evidence that the plaintiff was employed to find a purchaser for the property of defendant, and pursuant thereto did find a purchaser who, through the efforts of the plaintiff, purchased defendant's property in question upon the terms specified, or upon terms agreed to between the defendant and such purchaser, and that the plaintiff was the procuring cause of the sale, then your verdict will be for the plaintiff.

"As the case is presented to you, the sole question is whether or not the plaintiff has earned a commission according to the terms of the contract, and in case you decide he has, it is your duty to determine the amount of that."

The case was tried to a jury, which gave the appellee a verdict for $1,250. Judgment followed the verdict. The appeal is from the judgment and order denying the motion for a new trial.

At the close of the plaintiff's evidence, and again at the close of all the evidence in the case, the defendant requested an instruction in the nature of a demurrer to the evidence. The court refused to grant either of these requests, and the ruling is assigned as error -- the ground being in substance that there is no evidence tending to show that Mr. Dunn was authorized to act for the defendant, or that he ever did act for the defendant in employing the plaintiff; that if he did so act, his action was unauthorized and unratified by defendant. Error is also predicated upon the instruction given.

A careful review of the record discloses that the facts are not disputed. It is only the inferences which can reasonably be drawn from them that give rise to the contentions here, and we are of opinion that the inferences to be drawn from the facts in this case are such that men may not reasonably differ concerning them. The question is therefore one of law for the court. However, if there be any evidence reasonably tending to support the judgment, it ought to be sustained.

The primary object of an agency is to bring the principal into contractual relations with third parties -- into privity with them; and it is elementary, therefore, to say that a principal is not responsible for contracts which he has neither directly nor indirectly authorized.

"It is axiomatic in the law of agency that no one can become the agent of another except by the will of the principal, either expressed or implied from particular circumstances; that an agent cannot create in himself an authority to do a particular act by its performance; and that the authority of an agent cannot be proved by his own statement that he is such." Graves v. Horton, 38 Minn. 66, 35 N.W. 568.

Of course, the mere order of proof is not vital. This is within the legal discretion of the trial judge, and if he allows evidence of the agent's acts before proof of the agency to do the particular act in question, it will not be reversible error, provided proof of such agency is established at some stage of the trial. But where the nature and extent of an agent's authority is directly involved it must never be lost sight...

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