Eastland v. Maney

• Decision Date: 18 May 1904
• Parties: EASTLAND et al. v. MANEY.
• Court: Texas Court of Appeals

81 S.W. 574

EASTLAND et al. v. MANEY.

Court of Civil Appeals of Texas.

May 18, 1904.

Appeal from District Court, Frio County; E. A. Stevens, Judge.

Action by H. Maney, Sr., against F. A. Hihn, in which Alfred T. Eastland and others intervened. From a judgment for plaintiff against the interveners, they appeal. Reversed.

R. W. Hudson and F. B. Earnest, for appellants. W. A. H. Miller, Mason Maney, and C. A. Davies, for appellee.

FLY, J.

Appellee instituted this suit against F. A. Hihn, as agent of the heirs of Thomas B. Eastland, deceased, to recover the sum of $664.20, alleged to be due as commissions for the sale of a tract of land in Frio county. A writ of attachment was levied upon the land. Alfred T. Eastland, Josephine Eastland, Fredrika Eastland, Joseph L. Eastland, Thomas B. Eastland, and Van L. Britton, residents of the state of California, intervened in the suit and alleged that they were the owners in fee simple of the land concerning the sale of which appellee claimed commission, that Hihn owned no interest in the land, that he was never at any time authorized by them to make any contract of sale of their land, and that the only authority he had was to receive and submit to them any offers for the purchase of the land, for them to accept or reject as they saw proper. Exceptions were also urged to the petition, which were overruled by the court. No answer was filed by Hihn. A trial by jury resulted in a verdict and judgment in favor of appellee against the interveners Alfred T. Eastland, Josephine Eastland, Joseph L. Eastland, and Van L. Britton, in the sum of $583.07, and in favor Fredrika Eastland, Thomas B. Eastland, and F. A. Hihn.

It is a general rule of the law that in the absence of any authority, express or implied, an agent has no power to employ a subagent. The trust committed to him being personal, he cannot delegate it to another, so as to affect the rights of the principal. There are, however, exceptions and modifications of the rule, growing out of the necessities and exigencies of a case, or based upon the custom or usage of trade in like cases. There are instances when the employment of subagents is essentially necessary in order to execute the agency, and the authority of the agent will be construed to include the necessary and usual means to properly execute it. Bodine v. Ins. Co., 51 N. Y. 123, 10 Am. Rep. 566; Dorchester Bank v. New England Bank, 1 Cush. 177; Bank v. McGilvray, 4 Gray, 518, 64 Am. Dec. 92.

At the time of the employment of appellee it was alleged that Hihn and Alfred T. Eastland were empowered as agents to sell the land. They were residents of California, and the land is situated in Texas; and it is a fair presumption, growing out of the exigencies of the transaction, that it was contemplated that a purchaser should be obtained through a subagent. Smith v. Sublett, 28 Tex. 163; Tynan v. Dullnig (Tex. Civ. App.) 25 S. W. 465. It follows as a corollary to the above proposition that, if the circumstances of the case justified the appointment of a subagent, the principal would be liable for his compensation.

The special exceptions urged to the petition present the question as to the sufficiency of the allegation of the petition to permit proof of the authority of the agent to employ a subagent. We think the facts alleged form the basis for such proof; it appearing therefrom that the agent was a nonresident and the subagent a resident of the county in which the land is situated.

The answer of Alfred T. Eastland, stating the substance of letters written by him to Hihn, was properly admitted, as to him, as showing his declarations; and, if the other appellants desired its effect confined to him, they should have asked the court to so restrict it. However, it does not tend to show the agency of Hihn, and could not have injured any one.

There is no evidence in the record tending to show that Hihn was ever authorized by appellants to sell the land, unless it might be inferred from his letters to appellee. Agency, however, cannot be proved by the declarations of the agent made at some previous time, and there is no evidence showing that appellants had ever made him their agent, and Hihn and Alfred T. Eastland swore positively that he was never authorized by appellants to...