Fee v. Adams Express Co.

• Decision Date: 26 February 1909
• Docket Number: 50-1908
• Citation: 38 Pa.Super. 83
• Parties: Fee v. Adams Express Company
• Court: Pennsylvania Superior Court

38 Pa.Super. 83

Fee v. Adams Express Company

No. 50-1908

Superior Court of Pennsylvania

February 26, 1909

Argued April 20, 1908 [Syllabus Matter]

Appeal by defendant, from judgment of C.P. Fayette Co.-1906, No 422. on verdict for plaintiff in case of Charles M. Fee v Adams Express Company.

Assumpsit on an alleged contract of employment. Before Umbel, J.

The facts are stated in the opinion of the Superior Court.

At the trial when E. E. Sanford was on the stand, he was asked this question:

" Q. I will ask you if you have any authority as route agent of the express company to make any such contract as Mr. Fee has testified here was made?"

Objected to as incompetent.

Objection sustained. Exception for the defendant.

C. M. Day was asked this question:

" Q. I will ask you whether or not route agents in the employ of the Adams Express Company have authority and power to make any such contracts as Mr. Fee has testified that he and Mr. Sanford had?"

Objected to as incompetent.

Objection sustained.

Counsel for defendant move the court to give binding instructions to the jury in favor of the defendant company for two reasons, as follows:

1. That there can be no recovery on the count alleging a contract, for the reason that there is no testimony that Sanford, the route agent, had authority to make such a contract.

2. There can be no recovery on the count of a quantum meruit for the reason that there is no testimony as to the value of the services, if any, rendered.

The Court: Refused; exception for the defendant.

The court charged the jury in part as follows:

[There are about only two questions for you to determine; one is whether or not a contract was entered into between the plaintiff and the representative of the defendant company; the other is, if you should determine the first against the plaintiff, what would be reasonable compensation for the plaintiff's services rendered in connection with the case, regarding which the testimony has been submitted.]

[If you should find the contention of the plaintiff to be the correct one and that a contract of this character was entered into between him and the representative of the defendant company, the plaintiff admitting that he has already received $ 275 on account of the $ 500, if you should find and determine along that line, then under this contract there would be still due to the plaintiff the sum of $ 225, with interest from the time when it should have been paid, which the plaintiff claims was September 1, 1905.]

[If the contention of the plaintiff prevail and there was a contract, then the amount was fixed by the contract and you should render a verdict accordingly.]

Verdict and judgment for plaintiff for $ 240.21. Defendant appealed.

Errors assigned were rulings on evidence, quoting the bill of exceptions; refusal of binding instructions; above instructions, quoting them.

A. E. Jones, of Jones & Henderson, for appellant. -- An agent cannot act for and bind his principal except within the scope of his authority. The burden of proving the authority of the agent is upon the one seeking to bind the principal: B. & O. Employees' Relief Assn. v. Post, 122 Pa. 579; Central Penna. Telephone & Supply Co. v. Thompson, 112 Pa. 118; American Life Ins. & Trust Co. v. Shultz, 82 Pa. 46.

Mr. Sanford was a competent witness to prove the agency, the scope and extent of his authority.

Wooda N. Carr, for appellee. -- The principal is, generally speaking, responsible for and bound by those acts of his agent done in the course of the agent's employment and within the scope of the agent's authority: Susquehanna Mutual Fire Insurance Co. v. Cusick, 109 Pa. 157; Tanner v. Oil Creek R. R. Co., 53 Pa. 411; Kerns v. Piper, 4 Watts, 222.

This principle applies to the apparent scope of the agent's authority: Miller v. Saving Assn., 3 W.N.C. 480; Burton's Appeal, 93 Pa. 214; Laird v. Campbell, 100 Pa. 159; Griswold v. Gebbie, 126 Pa. 353; Hill v. Nation Trust Co., 108 Pa. 1; American Life Ins. & Trust Co. v. Shultz, 82 Pa. 46.

Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.

OPINION

RICE, J.

A package of bank bills while in the possession of the defendant company was stolen in Fayette county, and E. E. Sanford, a " route agent" of the company for the district in which it was stolen, was directed to investigate the theft. The plaintiff, a constable of the county, alleges that he was employed by Sanford to assist in the investigation, and that in the course thereof, which extended over several months, he had many interviews and much correspondence with Sanford and other parties. As a result of their investigations, the nature of which need not be detailed, information was received from which it was concluded that James Pope and Thomas Pope were the guilty parties. Warrants were sworn out for their arrest, and Thomas Pope was arrested by the plaintiff in Fayette county under the warrant directed to him as constable, and was lodged in jail. The plaintiff claims from the defendant company $ 50.00 upon the allegation that before the arrest was made Sanford promised to pay him that sum for making it. He claims further that after Thomas Pope was lodged in jail Sanford promised to pay him $ 50.00 more if he would obtain a statement from the prisoner, and that acting upon this undertaking of Sanford he succeeded, after many talks with Thomas and making him many promises, in inducing him to make a truthful statement which implicated himself and James Pope as the guilty parties. He testified that still later he ascertained that James Pope was in New Mexico, and that at the request of Sanford, and induced by his promise to furnish him transportation and pay him $ 400 for the service, in addition to the sum of $ 100 which the county agreed to pay, he went to New Mexico, arrested Pope and brought him back to Fayette county. In so doing he acted under a requisition issued by the governor of Pennsylvania at the instance of the district attorney in which he was named as agent of the commonwealth. He admits that his fees as constable for the arrest of Thomas Pope were taxed as part of the costs, that he received $ 100 from the county on account of his services in the extradition of James Pope, that transportation for himself and the prisoner, for substantially all the distance, was furnished by the defendant company, and that through its agents he received $ 275.

To state the plaintiff's case in condensed form, as shown by the amendment to his statement of claim and his testimony, the plaintiff based his demand for $ 500, less the admitted payments amounting to $ 275, upon an alleged express agreement of Sanford, " route agent aforesaid of the defendant," to pay him $ 400 for his services in connection with the arrest and extradition of James Pope, and $ 100 for his services in arresting and obtaining a statement from Thomas Pope. The defendant defended on two grounds: first, that Sanford made no such promises and entered into no such agreement as the plaintiff testified to; secondly, that he had no authority to bind the company by such agreement. The question whether the plaintiff could recover under the pleadings, without proof of an express contract for a specific sum, need not be discussed; for there was no evidence from which the jury could determine what amount, if any, beyond the sum paid him his services were reasonably worth. Nor would it be within our province to disturb the finding of the jury upon the question whether Sanford undertook in terms to bind his principal to pay the specific sums mentioned, even though we might be of opinion that as to that matter the evidence preponderated in favor of the defendant's contention; therefore we shall not discuss the question. So that the case, as it is presented on this appeal, turns on the question of Sanford's authority. This question was raised by the plea of the general issue, by the denial of his authority in the defendant's supplemental affidavit of defense, by the objections made at the outset of plaintiff's examination as a witness, by the defendant's rejected offers which are set forth in the first and second assignments of error, and by the defendant's request for binding instruction.

As appears by the second assignment of error, the defendant offered to show by its general agent, who had charge of the route agents of the company, and knew the extent of their authority, that they had no authority to make such contracts. It is true in American Life Insurance and Trust Co. v Shultz, 82 Pa. 46, the court declined to sustain an assignment of error to the rejection of an offer to prove the authority of the company's agents generally, but in the present case the offer was much more explicit. The offered evidence would have been well calculated to repel any erroneous inference that the jury might draw from the title of Sanford's agency, and would have tended to show in corroboration of the offered testimony of Sanford, that, as route agent, he had no authority to make the contract sued upon. The case of Central Pennsylvania Telephone & Supply Co. v. Thompson, 112 Pa. 118, 3 A. 439, is in point. There the acts and declarations of one Malin, a superintendent of the company's lines for the central district, were relied on by the plaintiff to fix the responsibility of the company, and the defendant offered to show by the general manager of the company whether Malin " as...