Cain Bros. Co. v. Wallace

• Decision Date: 11 April 1891
• Citation: 46 Kan. 138,26 P. 445
• Parties: CAIN BROS. CO. v. WALLACE.
• Court: Kansas Supreme Court

26 P. 445

46 Kan. 138

CAIN BROS. CO. v. WALLACE.

Supreme Court of Kansas

April 11, 1891

Syllabus

1. When a corporation carries on the business of buying and shipping grain through an agent, and the authority of such agent to purchase grain in wagon-load lots upon inspection is conceded, it is competent to introduce evidence to show the inspection and purchase of grain by such agent, to determine the scope and authority of his agency, and to ascertain whether the purchase of certain grain sued for was within the fair scope of his authority as the agent of such corporation.

2. Special findings examined, and found to be supported by evidence, and not inconsistent with the general verdict.

3. Instructions given to a jury should be taken and considered together as an entirety.

4. Statements of a juryman of what took place during the trial of an action, made after, the rendition of the verdict and the separation of the jury, and not under oath, are simply hearsay evidence, and it is not error for the trial court to overrule a motion for a new trial, based upon affidavits of such hearsay statements.

Commissioner’s decision. Error from district court Atchison county; W. D. GILBERT, Judge.

W. W & W. F. Guthrie, for plaintiff in error.

H. M. Jackson, for defendant in error.

OPINION

GREEN, C.

This action was commenced in the district court of Atchison county, by B. F. Wallace, against Cain Bros. Company, to recover the sum of $978.65 as a balance claimed to be due him for wheat sold to the defendant. The petition alleged "that on or about the 20th day of October, A.D. 1886, the defendant, Cain Brothers Company, was and still is a corporation, duly incorporated and organized under the laws of the state of Kansas, and as such was doing business in divers counties of said state of Kansas as a buyer, seller, and shipper of grain; and that on or about said October 20, 1886, and for a long time prior and also subsequent thereto, one R. B. Buck was the duly-authorized and acting agent of said defendant company in the matter of making contracts for and in buying and shipping of grain in behalf of said company in the county of Jewell and in the state of Kansas, and that on or about said 20th day of October, A.D. 1886, said defendant, by and through its duly-authorized and acting agent, R. B. Buck, upon examination, inspection, and test of the certain grain then belonging to and the property of this plaintiff, contracted with this plaintiff for the purchase of a large quantity of wheat then in the possession of the plaintiff, to be delivered on board of cars at Jewell City, Kansas, near the place of business of said defendant company at said Jewell City, and thereafter, and under any by the terms of said contract, and between the said 20th day of October, A.D. 1886, and the 6th day of November, A.D. 1886, this plaintiff delivered to said defendant on board the cards at said Jewell City 5,310 bushels and 55 pounds of wheat, for which the said defendant, by and through its said acting and duly-authorized agent, contracted, promised, and agreed to pay to this plaintiff the price and sum of 50 cents per bushel, or $2,655.45. That of said sum said defendant paid to this plaintiff the sum of $1,676.80, and the balance due to plaintiff thereon is $978.65." To this petition the defendant answered by a general denial, and, as a second defense, alleged "that, although said R. B. Buck was in the employ of the defendant at the said time, he was not then or at any other time the duly-authorized and acting agent of the defendant in the matter of making contracts for and in buying and shipping grain on behalf of defendant; " and then denied specifically the contract for the sale of wheat by plaintiff, and alleged what was claimed by defendant as being the contract in relation thereto, alleging in brief that the contract was to ship the grain to Atchison, to be delivered and graded at Atchison; and then alleged that said wheat was not of the grade represented and contracted for, and that for that reason the said grain was shipped to St. Louis and other markets and sold, and the proceeds, accounted as $788.65, paid to plaintiff in full settlement thereof: and for a further defense set up a counterclaim for $250 damages by reason of the failure of the plaintiff to perform his contract. The jury returned a verdict in favor of plaintiff for the sum of $728. A motion for a new trial was overruled. Judgment was rendered for the amount of the verdict and costs, and the defendant brings the case to this court.

1. The first assignment of error is the introduction of evidence upon the part of the plaintiff, to show the authority of R. B. Buck to make the contract alleged in plaintiff’s petition. It was conceded that the defendant opened its business in Jewell City about the 1st of September, 1886, for the purpose of buying grain, and that Buck was in charge of such business, and authorized to purchase grain under certain restrictions. The evidence complained of tended to prove Buck’s authority to make the contract claimed by plaintiff, by showing that he inspected, received, and paid for different lots of wheat, as brought to defendant’s warehouse. We think the evidence was competent. The authority of the agent was not in writing, so as to make the scope of such authority a question of law for the court. Buck was the recognized agent of the defendant, so that the question was not whether the relation of principal and agent existed, but what was the scope of the agency? The fact and scope of an agency may be determined not alone by what the principal may tell the agent to do, but also from what he knows, or in the exercise of ordinary care might know, as to what the agent is doing. It has been said: "In most cases, if not in all, the question of agency is a matter of fact, which it is the province of a jury to determine upon, under the instructions of the court; and if the testimony tends to prove that the person acting as agent had authority from his principal to do the act, then it is manifest that the court cannot exclude from the jury the act itself,...