Grim v. Bonnell

• Decision Date: 10 May 1875
• Citation: 78 Pa. 152
• Parties: Grim <I>versus</I> Bonnell.
• Court: Pennsylvania Supreme Court

78 Pa. 152

Grim versus Bonnell.

Supreme Court of Pennsylvania.

March 17, 1875.

May 10, 1875.

March 17th 1875.

Before AGNEW, C. J., SHARSWOOD, WILLIAMS, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the Court of Common Pleas of Northampton county: No. 67, to January Term 1875.

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W. E. Doster and H. Green for plaintiff in error.—An agent may prove his own authority when by parol, but his declarations, in pais, are not proof of it: Jordan v. Stewart, 11 Harris 247; Clark v. Baker, 2 Wharton 340; Chambers v. Davis, 3 Id. 44. Defendant had a right to give whatever evidence he could to show that he had acquired the goods by a bonâ fide purchase from Wenner: Gerrish v. Chartier, 1 M., Gr. & Scott 13.

B. F. Fackenthall, for defendant in error.

Mr. Justice WOODWARD delivered the opinion of the court, May 10th 1875.

At the point which had been reached in the trial of this cause, when the declarations of George Wenner were admitted in evidence, there had been no proof to warrant the assumption that he had ever been authorized to act as agent for the defendant. The witness Gurnee and the plaintiff had sworn, that Wenner and the defendant had been together at the plaintiff's store, and that some negotiation was had for the purchase of grain. The defendant declined to buy, and in leaving, he said, according to the statement of Gurnee, "if he made up his mind to buy, he would leave the order with Mr. Wenner; he would leave instructions with Mr. Wenner whether to buy or not;" or, as stated by the plaintiff, "if he concluded to take it, he would have George come there and tell us so; give us the order." This evidence did not justify the admission of proof of the statements of Wenner. Such proof was entitled to be received only on the theory that he had been authorized to contract for the grain on behalf of the defendant as his agent, and there had been nothing to show that a word had passed between them on the subject after they left the plaintiff's store. Indeed, throughout the trial, there was nothing to indicate the existence of an agency, except what could be implied from the declaration of Wenner in his conversation with the plaintiff. "An agent is competent to prove his own authority when it is by parol, but his declarations in pais are not proof of it; and though they become evidence as part of the res gestæ, if made in the conduct of the business intrusted to him, yet other evidence must first establish his authority to speak before his words shall bind his principal:" Jordan v. Stewart, 11 Harris 244. Agency cannot be proved by the declarations of the agent without oath, and in the absence of the party to be affected by them: Clark v. Baker, 2 Whart. 340: Chambers v. Davis, 3 Id. 44.

The memorandum which the plaintiff testified he received from Wenner when the contract for the grain was made, was also improperly admitted. The record does not show in whose handwriting the memorandum was. It may or may not have been in Wenner's, but that is indifferent, for it could only have been made competent evidence by proof, either that the defendant had written it, or that he had authorized Wenner to act as his agent. The first and second specifications of error are sustained.

The testimony specified in the third, fourth and sixth assignments of error should have been received. The defendant had sworn that he had given no order, verbal or written, for the grain purchased from the plaintiff. Wenner was indebted to him in a sum exceeding $900. When the car load of grain was bought, the plaintiff had been requested to ship it to the defendant. The offer was to prove that at the time of the delivery, the defendant bought the...