Continental Oil Co. v. Baxter

• Decision Date: 14 April 1933
• Docket Number: No. 1100.,1100.
• Citation: 59 S.W.2d 463
• Parties: CONTINENTAL OIL CO. v. BAXTER.
• Court: Texas Court of Appeals

59 S.W.2d 463

CONTINENTAL OIL CO. v. BAXTER.

No. 1100.

Court of Civil Appeals of Texas. Eastland.

April 14, 1933.

Appeal from Erath County Court; Wallace Scott, Judge.

Action by C. C. Baxter against the Continental Oil Company. Judgment for plaintiff, and defendant appeals.

Reversed and rendered.

Burney Braly, G. B. Smedley, and G. R. Pate, all of Fort Worth, for appellant.

Ernest Belcher, of Stephenville, for appellee.

FUNDERBURK, Justice.

C. C. Baxter, owner of KFPL Radio Station, Dublin, Tex., sued Continental Oil Company a corporation, in justice court, upon an account amounting to $147.20. Judgment for plaintiff as prayed for. Same judgment in county court upon appeal. An agreed statement of the oral pleadings shows that the cause of action was upon a contract for advertising by electrical transcription from December 25, 1930, to June 1, 1931, consisting of twenty-six programs entitled "Conoco Listeners' Hour." Plaintiff alleged the contract was made with defendant "by and through its duly authorized agent J. F. Powell," and that "said services were actually and beneficially received by said defendant * * * and that they (it) are indebted to this plaintiff in the sum of $147.20 for services rendered as stated, which are reasonable, just, due and unpaid," etc.

The jury to whom the case was submitted on special issues found: (1) That the witness J. F. Powell, at Cisco, Tex., during the month of December, 1930, entered into the contract in question under which the broadcast was performed by plaintiff; (2) that said witness J. F. Powell, in so entering into such contract, purported to act as the agent of the Continental Oil Company; (3) that the agent J. F. Powell was acting within the scope of his apparent authority in entering into the agreement in question; and (4) that the plaintiff, C C. Baxter, did not "enter into a written contract with W. A. Crumpton, under the terms of which services sued for herein were performed." The last-named issue was in response to evidence to the effect that the services in question were performed under a written contract between W. A. Crumpton and the plaintiff. From the judgment entered in accordance with said verdict, the, defendant Continental Oil Company, has appealed.

The questions presented for determination are so closely interrelated that we deem it advisable first to discuss the principles of law thought to be controlling and then to make the application to the propositions asserted under the different assignments of error.

With reference to the scope of their authority, agents are of two kinds, general and special. "A general agent is defined to be one who is employed to transact generally all the business of the principal in regard to which he is employed, or in other words, to do all acts connected with a particular trade, business or employment, or to transact all the business of his principal of a particular kind, or in a particular place, and hence a general agency exists when there is a delegation of authority to do all acts connected with a particular trade, business or employment, for the fact that the authority of an agent is limited to a particular business does not make it special as it may be as general in regard to that business as though its range was unlimited." 2 C. J. 427, § 15; Great American Casualty Co. v. Eichelberger (Tex. Civ. App.) 37 S.W.(2d) 1050. A "special agent" is "one who is employed to act only in a special or specific transaction, or to do a specific act, or to do one or more specific acts, or for a particular purpose only, or to act within limited and circumscribed powers under restrictions imposed by the principal or implied from the nature of the act to be done, or as one who is not given entire control over the particular business, but only the right to do specific acts." 2 C. J. p. 428, § 16.

A careful study of the subject convinces us that the only practical distinction between a general and special agent is in the different character of proof or evidence necessary to show the scope of the agent's authority. All other rules or principles are alike applicable to each.

"With reference to their authority in fact, agents are said to be either (a) actual, or (b) apparent or ostensible. An actual agent is one who has either expressly or by implication in fact been authorized by the principal to act in his behalf. An apparent or ostensible agent is one whom the principal either intentionally or by want of ordinary care induces third persons to believe to be his agent although he has not either expressly or by implication conferred authority upon him." (Italics ours.) 2 C. J. 427, § 14. It thus appears that actual authority of an agent includes express and implied authority. Lane v. Sullivan (Tex. Civ. App.) 286 S. W. 541; Denison v. Nunn (Tex. Civ. App.) 293 S. W. 838. Just as there is no difference between an express and an implied contract of agency (2 Tex. Jur. 298, § 16) when the inquiry is with reference to the existence or not of an agency, so there is no difference in express authority and implied authority of an agent, in an inquiry as to the actual authority of the agent. In contrast with "actual authority" is "apparent authority" or "ostensible authority."

When a liability is enforceable because of the "apparent" or "ostensible" authority of an agent, having no actual authority, it is upon the principle of an estoppel. 2 Tex. Jur. p. 424, § 38; Tres Palacios Rice, etc., Co. v. Eidman, 41 Tex. Civ. App. 542, 93 S. W. 698; Reo Motor Car Co. v. Barnes (Tex. Civ. App.) 9 S.W.(2d) 374; Lane v. Sullivan (Tex. Civ. App.) 286 S. W. 541; Hobby v. King Trailer Co. (Tex. Civ. App.) 273 S. W. 650; Shippers' Compress Co. v. Northern Assur. Co. (Tex. Civ. App.) 208 S. W. 939; J. I. Case Threshing Mach. Co. v. Morgan (Tex. Civ. App.) 195 S. W. 922; Overton v. First Texas State Ins. Co. (Tex. Civ. App.) 189 S. W. 514; Holmes v. Tyner (Tex. Civ. App.) 179 S. W. 887; W. D. Cleveland & Sons v. Houston Sporting Goods Store (Tex. Civ. App.) 166 S. W. 912; Cannel Coal Co. v. Luna (Tex. Civ. App.) 144 S. W. 721; Great American Casualty Co. v. Eichelberger (Tex. Civ. App.) 37 S.W.(2d) 1050; Tarver, Steele & Co. v. Pendleton Gin Co. (Tex. Civ. App.) 25 S.W.(2d) 156; American Mortgage Corp. v. Spencer (Tex. Civ. App.) 45 S.W.(2d) 301; Kohlberg v. Awbrey & Semple (Tex. Civ. App.) 167 S. W. 828.

Where plaintiff seeks to hold defendant to liability for an act or contract of an agent without actual authority, but within the scope of such agent's "apparent" or "ostensible" authority, it is necessary that the issue of such authority be presented by a plea of estoppel. 2 Tex. Jur. p. 637, § 217; Tres Palacios, etc., Co. v. Eidman, 41 Tex. Civ. App. 542, 93 S. W. 698; Tarver, Steele & Co. v. Pendleton Gin Co. (Tex. Civ. App.) 25 S.W.(2d) 156; Reo Motor Car Co. v. Barnes (Tex. Civ. App.) 9 S.W.(2d) 374; Climber Motor Corp. v. Fore (Tex. Civ. App.) 273 S. W. 284; Farmers' Union Co-op. Clearance House v. Guinn (Tex. Civ. App.) 208 S. W. 362; Bankers' Trust Co. v. Cooper et al. (Tex. Civ. App.) 179 S. W. 541; Swayne v. Union Mutual Life Ins. Co. (Tex. Civ. App.) 49 S. W. 518; Mutual Ben. Life Ins. Co. v. Collin County Nat. Bank, 17 Tex. Civ. App. 477, 43 S. W. 831; Western Industrial Co. v. Chandler (Tex. Civ. App.) 31 S. W. 314; Rail v. City National Bank, 3 Tex. Civ. App. 537 22 S. W. 865; Garrow et al. v. Texas & N. O. R. Co. (Tex. Civ. App.) 273 S. W. 277; Y. M. C. A. v. Schow Bros. (Tex. Civ. App.) 161 S. W. 931; Wolf Co. v. Galbraith, 39 Tex. Civ. App. 351, 87 S. W. 390. See, also, Johnson v. Dallas Cooperage, etc., Co., 120 Tex. 27, 34 S.W.(2d) 845, an opinion approved by the Supreme Court, wherein the holding on this point by this court in Tarver, Steele & Co. v. Pendleton Gin Co., supra, was apparently approved.

Some confusion in the authorities is manifest in the employment of the term "apparent authority." For instance, in the recent case of Cox, Inc., v. Humble Oil & Refining Co. (Tex. Com. App.) 16 S.W.(2d) 285, 286, a judgment of the trial court was approved by the Supreme Court as against a contention that a finding that "said Monroe, at the time he acted for appellant, had `apparent authority * * * to make such agreement as he made,'" was without support in the pleadings, the only pleading being that the contract in suit was made "through its duly authorized agent Monroe." Obviously if "apparent authority" as thus found by the jury meant the same thing as that term is employed in the foregoing decisions (i. e., as a term contrasted with "actual authority"), then the decision in Cox, Inc., v. Humble Oil & Refining Co., supra, shows a conflict and raises a question of whether the former decisions are to be regarded as overruled. We cannot bring ourselves to believe that the last-named effect was intended. The seeming conflict is attributable, we think, to the use of the term "apparent authority" in different senses. In many cases "apparent authority" seems to be used in the same sense as, or as included within, the meaning of "implied authority." Collins et al. v. Cooper, 65 Tex. 460; Gulf, C. & S. F. Ry. Co. v. Hume, 87 Tex. 211, 27 S. W. 110; Sealy Oil Mill, etc., Co. v. Bishop Mfg. Co. (Tex. Com. App.) 235 S. W. 850; Bergere v. Parker (Tex. Civ. App.) 170 S. W. 808; Sanders v. Elberta Fruit Co. (Tex. Civ. App.) 190 S. W. 817; Glens Falls Ins. Co. v. Bendy (Tex. Civ. App.) 39 S.W.(2d) 628; Merriman v. Fulton et al., 29 Tex. 98; Hull v. East Line, etc., R. Co., 66 Tex. 619, 2 S. W. 831. But in none of the cases we have read, with the exception of Cox, Inc., v. Humble Oil & Refining Co., supra, was any possible distinction between "apparent" and "implied" authority discussed with special reference to a different rule of pleading. Aside from the question of pleading and for most practical purposes, there may be little importance whether a liability is sought to be enforced on the theory of an implied authority of an agent...