Buist v. Guice

• Decision Date: 14 June 1892
• Citation: 96 Ala. 255,11 So. 280
• Parties: BUIST v. GUICE.
• Court: Alabama Supreme Court

11 So. 280

96 Ala. 255

BUIST v. GUICE.

Supreme Court of Alabama

June 14, 1892

Appeal from circuit court, Barbour county; J. M. CARMICHAEL, Judge.

Action by B. L. Guice against Robert Buist, Jr., for breach of contract. Judgment for plaintiff. Defendant appeals. Reversed.

S H. Dent and H. D. Clayton, for appellant.

A H. Merrill, for appellee.

THORINGTON J.

Appellee sued to recover of appellant damages for the alleged breach of a contract by which the latter agreed to sell the former 250 barrels of Irish potatoes, to be divided in two shipments, of 125 barrels each, on the 1st and 15th of January, 1891, respectively, all to be shipped to appellee at Eufaula, Ala. The order for the potatoes was given to one Vanderbilt, who represented himself at the time to be the agent of appellant. The order showing the number of barrels sold, the price per barrel, cash, and the time and place for delivery, was forwarded by Vanderbilt to appellant's house in Philadelphia in September, 1890, which was the same month in which the sale was made. On October 29, 1890 appellant wrote to appellee informing him of general disaster to the potato crop, and stating that appellant was unwilling to barrel the potatoes for shipment, unless appellee would assume all responsibility. Thereupon a correspondence arose between the parties, appellee insisting on his order being filled as given, or that appellant should pay him the difference between the price at which he purchased and the market value of the potatoes at Eufaula at the time they were to have been delivered, (the price then being higher than when the order was given,) and appellant declining to fill the order unless appellee would accept the best potatoes appellant might, under the circumstances, be able to procure and that the price should be forwarded in advance. The deposition of appellant's bookkeeper was offered to prove a recognition by appellant of Vanderbilt's agency, and the correspondence was offered to show a recognition or ratification by appellant of Vanderbilt's acts in making the sale. The potatoes were to be delivered at $2.75 per barrel, free on board the cars at Philadelphia, to be shipped to Eufaula; and their market value at the latter place, at the time of delivery, was $3.75 per barrel. There was a verdict and judgment for appellee for the difference between the price at which the potatoes were bought and their market value at the time and place of delivery. The questions reserved for the decision of this court are as to the competency and sufficiency of the testimony to establish Vanderbilt's authority to make the sale as agent for appellant, and the terms of such sale, and as to the measure of damages.

The first question is raised by exceptions to the rulings of the court on the testimony, and on the refusal of the court to grant a new trial, and the second question is raised by exception to the charge of the court. The fact of Vanderbilt's agency rests in parol, and for that reason its existence and the extent of his authority are questions for the jury. Neither its existence nor extent could be proved by the mere declarations or acts of Vanderbilt, although he professed to be acting for appellant. Such acts and declarations are not binding on appellant, unless Vanderbilt's authority, or appellants' assent to or ratification of such acts or declarations, is shown. When, however, there are facts in proof tending to show the relation of principal and agent, whether such facts are shown directly or circumstantially, it is then competent for the jury to determine, from all the proof, whether such acts and declarations are binding on the principal. In Railroad Co. v. Henlein, 52 Ala. 606, it is said: "The correct rule is this: If there be no proof whatever tending to prove the agency, the act may be excluded from the jury by the court; but, if there is any evidence tending to prove the authority of the agent, then the act cannot be excluded from them, for they are the judges of the weight and sufficiency of the testimony." In Mechem, Ag. § 106, the rule is stated thus: "Where, however, the authority was not conferred by written instrument, and the facts are in dispute, it is for the jury to determine, under proper instructions from the court, not only whether an agency exists, but, if so, what is its nature and extent. It is impossible to lay down any inflexible rule by which it can be determined what evidence shall be sufficient to establish an agency in any given case, but it may be said, in general terms, that whatever evidence has a tendency to prove the agency is admissible, even though it be not full and satisfactory, as it is the province of the jury to pass upon it. So, if evidence has first been introduced tending to prove the agency or to make out a prima facie case thereof, the admissions and declarations of the alleged agent, if otherwise competent, may then be shown, and the whole case passed upon by the jury." The rule as above announced is amply supported by authority. Martin v. Brown, 75 Ala. 442; Insurance Co. v. Peacock, 67 Ala. 253; Gimon v. Terrell, 38 Ala. 208; McClung's Ex'rs v. Spotswood, 19 Ala. 165; National Mechanics' Bank v. National Bank, 36 Md. 5; Supply Co. v. Thompson, 112 Pa. St. 118, 3 A. 439.

While the orderly and better practice is to first introduce proof of the agency, or of facts from which the agency may be inferred, the court is not without discretion in that matter and may admit the proof in the inverse order to that above stated, and retain or exclude the testimony as to the acts and declarations of the alleged agent, according to the fact whether or not the subsequent proof has any tendency to establish the agency. Supply Co. v. Thompson, 112 Pa. St. 118, 3 A. 349. The correspondence between appellee and appellant, and also Stabler's deposition, tended to show the relation of principal and agent between appellant and Vanderbilt; and, that being the case, Vanderbilt's letter, both to appellee and appellant,...