Fritz v. Chicago Grain & Elevator Co.

• Decision Date: 16 December 1907
• Citation: 114 N.W. 193,136 Iowa 699
• Parties: S. B. FRITZ, Appellee, v. THE CHICAGO GRAIN & ELEVATOR CO., Appellant
• Court: Iowa Supreme Court

114 N.W. 193

136 Iowa 699

S. B. FRITZ, Appellee, v. THE CHICAGO GRAIN & ELEVATOR CO., Appellant

Supreme Court of Iowa, Des Moines

December 16, 1907

Appeal from Pocahontas District Court.--HON. A. D. BAILIE, Judge.

ACTION at law to recover a commission for finding a purchaser for a grain elevator belonging to defendant, situated in the town of Pocahontas. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.

Affirmed.

Lynch & Berry, for appellant.

Hazlett Allen & Atkinson, for appellee.

OPINION

DEEMER, J.

Defendant 's answer was in effect a general denial, and it also contained a counterclaim for money advanced to plaintiff, and unaccounted for by him. At the trial defendant introduced no testimony, and the case went to the jury upon the evidence adduced by plaintiff. As already stated, the verdict was for plaintiff, and the appeal is from the judgment rendered thereon. Something like twenty-one errors are assigned in the argument filed for defendant, but in the main they are based upon a few fundamental principles of the law of agency. For instance, it is contended that the authority of an agent cannot be proved by testimony as to his acts and declarations; that a person dealing with an agent is bound to ascertain the scope and extent of his authority; that the unauthorized act of one assuming to act as an agent is not to be deemed ratified by the principal, unless it be that he the principal, has knowledge of such acts; and that authority conferred upon an agent cannot ordinarily be delegated to another. The rules with reference to these matters are pretty well settled, and are quite generally understood, and the difficulty is in their application to particular facts and circumstances. There was testimony in this case to show that during the years 1903 and 1904 plaintiff was in the employ of defendant, which is a corporation with its main office in Chicago, and engaged in the business of buying grain at the town of Pocahontas. He quit defendant's service in the year 1904, and engaged in the general merchandise business in said town, and claims that in the year 1905 he was employed by C. D. Sturtevant and one Coon, who, it is alleged, were defendant's agents, to find a purchaser for the grain elevator at Pocahontas, at an agreed commission upon the fixed selling price, $ 4,500, of five per cent., or $ 225. He testified that he found such purchaser or purchasers to whom defendant sold the elevator, and claims that he has earned the agreed compensation. Under the evidence there is no doubt that defendant sold the elevator to some farmers and business men, in and near Pocahontas, who formed themselves into a corporation known as the Farmers' Grain & Coal Company, and that plaintiff was instrumental in bringing about the sale. But it is said in argument that there is no competent testimony that either Sturtevant or Coon had authority from defendant to make any agreement for defendant to pay plaintiff a commission, or to authorize him to find a purchaser, and, for reasons hereinafter to be stated, that defendant did not, by selling the elevator to the purchasers found by plaintiff, ratify the agreement of Sturtevant and Coon to pay plaintiff a commission.

The main contentions in the case grow out of this brief statement of facts, and, before going to the controlling propositions, it is well to note that there was sufficient testimony to establish the alleged agreement with Sturtevant and Coon, the finding of a purchaser or purchasers to whom the defendant sold the elevator, and of plaintiff's right to compensation, unless it be that he has not shown authority upon the part of Sturtevant and Coon to employ him. There can be no doubt of the authority of Sturtevant and Coon to contract for the sale of the elevator, for what they did in this respect was approved and ratified by defendant. The contract which was made by them was carried out by defendant, and a bill of sale of the property was executed by it to the Farmers' Grain & Coal Company for the consideration of $ 4,500. This, however, it is contended, did not constitute a ratification of any agreement Sturtevant and Coon may have had with plaintiff; for it is insisted that defendant had no notice or knowledge that any such agreement had been made.

The main question in the case was the authority of Sturtevant and Coon to employ plaintiff. Testimony was adduced, over defendant's objections, regarding the contract made by plaintiff with Sturtevant and Coon, and as to what was done by the parties thereunder. It is manifest that this was material, and went to the very heart of the controversy. Plaintiff had to prove it to make out a case, and the order of the introduction of testimony was a matter within the sound discretion of the trial court. True, this testimony was of no effect, unless plaintiff followed it up by showing the authority of Sturtevant and Coon to make such a contract, or that defendant ratified the agreement by its conduct with reference to the sale of the property, or that Sturtevant and Coon, or one of them, had such authority from defendant, with reference to the sale of the property, as permitted them to employ subagents to whom defendant might be responsible for services rendered. To show the authority of Sturtevant and Coon, plaintiff testified that he knew defendant and some of its officers and agents, and knew Sturtevant; and, over defendant's objections, that Sturtevant was manager of defendant company. He also testified, without objection, that he knew Coon, and Coon was a manager, traveling over the road, looking after the different houses, and keeping them up, looking after help, etc.; and he thought he also audited the accounts of the different elevators. He also testified that he was in the employ of the defendant at Pocahontas: and, without objection, that Sturtevant was in the defendant's Des Moines office as manager. We now quote from the record the following:

His (Sturtevant's) duties was the same as any grain man. He was to give instructions to the different houses over the State. He had to look after keeping the accounts. The accounts was rendered from that office. All my accounts was from that office--that is the grain, and the shape of the market when they made sale. The bills were made in Des Moines to me. While I was in Des Moines at those times I had conversations with him about the business at Pocahontas. I received my instructions in reference to the business and its conduct, so far as the Chicago Grain & Elevator Company was concerned, from Mr. Sturtevant. I know Mr. Coon. I know the work he did for this company. He simply traveled from house to house, and looked after what really was wanted, and looked after the hiring of men, and one thing or another. I know of his having hired a man here in Pocahontas when I ceased having further connection with him. His name was Mr. Gibson. Mr. Gibson worked for this company some time after his employ. I was at Des Moines at the time Mr. Sturtevant was working for the Chicago Grain & Elevator Company, in their office. He was just acting as any man would, attending his office, looking after the general run of the business, and reported it, and dictating letters. I heard him telephone for the market, and send dispatches, and he told me to sell grain at such and such prices and sell it--authorized me to do so. I think Mr. Streams was the president of the Chicago Grain & Elevator Company in 1903, 1904, and 1905. I wrote letters to the Chicago Grain & Elevator Company during my employment. I addressed the letters to the Chicago Grain & Elevator Company, in Des Moines. I received answers to those letters always from Des Moines. These letters were signed as a rule, 'Chicago Grain & Elevator Company, dictated C. D. S.--C. D. Sturtevant.' I had some conversation with Mr. Streams in the Savery Hotel, in Des Moines, in regard to the employment of Mr. Coon and Mr. Sturtevant. Mr. Streams at that time told me that Mr. Coon and Mr. Sturtevant, in regard to the elevator, would be about the same as Mr. Brown was, and Mr. Blasswell would be, along that line. Mr. Coon would look after the houses generally--tell the men what to do; and Sturtevant would take care of the office in Des Moines, to sell the grain the same as Mr. Brown used to--simply take Mr. Brown's place and act as their general secretary.

There was also ample testimony to show that Sturtevant and Coon finally closed and agreement with the purchasers procured by plaintiff, which agreement was recognized by defendant, and fully carried out according to its terms. No objection was made to the testimony which we have set out, save as is indicated, and we have now to deal with these objections. It nowhere appears that the authority of either Sturtevant or Coon was in writing, and we have the broad proposition may one, who has shown some competency upon the subject, testify that another is an agent for some third party, and as to the extent of that agency? This question is ruled by Heusinkveld v. Ins. Co., 106 Iowa 229, 76 N.W. 696, wherein it is said that "agency is a condition of which anyone having knowledge of it may testify, subject however to the test of cross-examination." See, also, Gault v. Sickles, 85 Iowa 266, 52 N.W. 206.

The well-established rule that agency may not be established by testimony as to the acts and declarations of the agent as announced in John Gund Co. v. Peterson, 130 Iowa 301, 106 N.W. 741, was in no manner violated by the...