Dockarty v. Tillotson

• Decision Date: 02 April 1902
• Citation: 89 N.W. 1050,64 Neb. 432
• Parties: DOCKARTY ET AL. v. TILLOTSON.
• Court: Nebraska Supreme Court

64 Neb. 432

89 N.W. 1050

DOCKARTY ET AL.

v.TILLOTSON.

Supreme Court of Nebraska.

April 2, 1902.

Syllabus by the Court.

1. Although agency cannot be proved by the admissions or declarations of the alleged agent alone, yet if, in an action against an alleged principal, the latter calls the former as a witness, and induces him to testify that he never represented himself as an agent with respect to the transaction in dispute, the testimony may be contradicted by proof of specific instances in which the witness did so represent himself. In other words, he may be subjected to the same tests of credibility as would be applicable to other witnesses under like circumstances.

2. An agent who contracts in his own name with respect to matters within the scope of his agency is personally obligated, although the fact of such agency is known to the opposite party.

Commissioners' opinion. Department No. 3. Error to district court, Douglas county; Fawcett, Judge.

Action by Lulu P. Tillotson against A. J. Dockarty and others. Judgment for plaintiff, and defendants bring error. Affirmed.Crane, Crane & Erwin and J. J. Boucher, for plaintiffs in error.

William R. Patrick, for defendant in error.

AMES, C.

The plaintiff in error Dockarty was engaged in Omaha, in this state, in a business which consisted in teaching pupils the art of making and drawing designs for letter heads, bill heads, checks, drafts, etc., and in making of such designs and procuring them to be engraved for the use of persons desiring them, who were his patrons or customers for pay. The designs, when prepared, were sent by him to the plaintiff in error the “Illinois Engraving Company,” an Illinois corporation at Chicago, where they were engraved. The engraved plates were sent by the company to Dockarty at Omaha, and used by him at the latter city for printing the designs. Dockarty paid the company at a specified rate for its share of the services rendered. The defendant in error, Miss Tillotson, had been a pupil at Dockarty's establishment, and, after having acquired sufficient proficiency in the art, accepted employment therein. After the lapse of some time she retired from the service, and sued Dockarty and the company in justice's court for a sum alleged to be a balance due her for wages. She recovered a judgment for the amount of her claim, from which an appeal was taken to the district court, where upon trial, a verdict was returned, and a judgment rendered in her behalf. The defendants have brought the record to this court for review by petition in error.

It is the contention of Miss Tillotson that although her business engagements were made with, and her services nominally rendered to, Dockarty personally, yet that in fact the latter was the agent of the Illinois company in the conduct of the business, and that the company was therefore obligated to her for her services rendered at his instance. Whether such was the fact is the sole question litigated in the case. As a part of her evidence the plaintiff below offered a blotter used by Dockarty in his business and for advertising purposes, which was shown to have been printed from an engraved plate made by the Illinois company, and which contained, besides some ornamental designs, the following words: “Illinois Engraving Company. Originators, Designers, Illustrators, Colorists, Wood Engraving, Zinc and Half-Tone Etchings, Colortypes, Etc. Western Branch, Omaha, Neb. A. J. Dockarty, Gen. Mgr. Mel Uhl, Bus. Mgr. Offices and Art Rooms, 616-17 Paxton Block.” It was objected by the company that, although the plate was engraved by its employés and at its works, it was not made to appear that any of its officers or agents having authority to bind it knew of the fact or had assented thereto; but the...