Hackett v. Van Frank

• Decision Date: 01 March 1904
• Citation: 79 S.W. 1013,105 Mo. App. 384
• Parties: HACKETT et al. v. VAN FRANK.
• Court: Missouri Court of Appeals

79 S.W. 1013

105 Mo. App. 384

HACKETT et al. v. VAN FRANK.

St. Louis Court of Appeals. Missouri.

March 1, 1904.

AGENCY—IMPLIED AUTHORITY—SALES—ESTOPPEL —EVIDENCE—ADMISSIBILITY—SUFFICIENCY —QUESTION FOR JURY.

1. The fact that one is agent for a person conducting the business of buying and selling beer does not give the agent the right, as incident to the business, to purchase whisky on his principal's credit.

2. On an issue as to whether a certain person had authority to purchase goods on defendant's credit, evidence as to statements of the alleged agent tending to show his agency are inadmissible.

3. Where the agent of one who conducted a beer business purchased whisky on the principal's credit, the principal, in an action for the price, was not estopped to deny the agent's authority so to do because a city and federal license as a wholesale liquor dealer had been issued in defendant's name, it appearing that the seller of the whisky never saw the city license and had sold two barrels of goods before the government license was issued.

4. An agent of defendant ordered whisky from plaintiff on defendant's credit, and in an action for the price it was claimed that defendant was estopped to set up that the agent had no authority to purchase the whisky because there were barrels of whisky in defendant's warehouse on which there were shipping tags bearing defendant's name. Held, that such fact did not constitute an estoppel, there being no evidence that plaintiff's sales were influenced by observing that defendant had had an opportunity to see his name on the barrels.

5. There was evidence that, after the whisky had been delivered, defendant received a telegram from the seller, and that on opening it he asked what it meant, and that the seller's agent, who was present, said that it meant that defendant should pay the seller some money. Held, that such facts were proper evidence for the jury on the issue of estoppel.

6. On an issue as to whether the agent of one who conducted a beer business had authority to buy on his principal's credit a quantity of whisky, it was proper to exclude evidence as to a sale of beer by the agent.

7. In an action for the price of goods sold, evidence considered, and held sufficient to take the case to the jury on the question whether the one who ordered the goods had authority to make the purchase in defendant's name.

8. In an action for the price of goods sold, evidence considered, and held sufficient to take the case to the jury on the question whether defendant had ratified the act of the one who purchased the goods on his credit.

9. In an action for the price of goods sold, evidence held sufficient to take the case to the jury on the question whether defendant's conduct had been such as to estop him from claiming that the one who ordered the goods on his credit had no authority.

Appeal from Circuit Court, Madison County; R. A. Anthony, Judge.

Action by James L. Hackett and others against P. R. Van Frank. From a judgment in favor of defendant, plaintiffs appeal. Reversed.

R. L. Wilson and W. H. Miller, for appellants. Frank E. Burrough and R. H. Whitelaw, for respondent.

GOODE, J.

Assumpsit in the usual form for merchandise said to have been sold and delivered to the defendant. Plaintiffs are a firm of wholesale liquor dealers in the city of Louisville, Ky., and the merchandise sold was chiefly whisky. The account consisted of three or four different sales made between June 23 and December 6, 1899. The liquors were consigned to the defendant at Cape Girardeau, Mo. The points of controversy are whether F. H. Dunlop, the defendant's son-in-law, who ordered the goods on the defendant's credit, and assuming to act as the defendant's agent, had authority to order them; or, if not, whether the conduct of the defendant estops him from resisting payment on the score of Dunlop's want of authority.

The assignment of error to be disposed of first is that there was no evidence to go to the jury in support of either hypothesis of liability. The defendant is a man of advanced years, and, as we gather, a widower. Previous to 1899 he had given his daughter, Mrs. Dunlop, the Riverview Hotel, in Cape Girardeau, and its furnishings; but early in 1899 the hotel was sold under a deed of trust put on it by Dunlop and his wife, and the defendant bought it, and likewise bought the furnishings at a private sale made by the assignee of Dunlop and wife, who had executed an assignment for the benefit of their creditors. The title to the hotel remained in Van Frank, but the Dunlops occupied it, and he lived with them. In whose name the hotel business was conducted, the record leaves uncertain. Van Frank testified that about March, 1899, Dunlop desired to obtain the agency of the Anheuser-Busch Brewing Association for the sale of beer. The only arrangement that could be effected was for the defendant to guaranty payment for the beer, which he did. Afterwards, at Dunlop's solicitation, defendant consented to have the beer shipped to Cape Girardeau in his name, instead of Dunlop's, to facilitate the business. Thereafter, during 1899, the beer business, as defendant concedes, was conducted in his name by F. H. Dunlop, as agent; but he contends that the agency embraced nothing else. Dunlop, however, made some purchases of whisky, including what was bought from the plaintiffs, as the agent of Van Frank and on the latter's credit. It was shown that he bought at least one bill from the Rothman Distilling Company. The only transactions with the plaintiffs were those covered by this suit, and they occurred between F. D. Sugg, a traveling salesman of the plaintiffs, and Dunlop, who gave Sugg orders for the liquors in Van Frank's name, and they were sold and shipped on the latter's credit after an investigation of his financial standing. The beer business Dunlop managed was a wholesale one, and was carried on in a room of the basement of the Riverview Hotel, where cases and kegs of beer and the barrels of whisky afterwards purchased were kept, and were visible to any one who entered the room, as Van Frank occasionally did. On August 3, 1899, a license as wholesale liquor dealer was issued in Van Frank's name by the United States collector. Dunlop procured this license, Van Frank says, without his knowledge or consent; but the license certificate was posted in plain view in the room where the liquors were kept, and was observed by Sugg. It was also proven that 10 or 12 barrels of whisky were on the floor of the wareroom at one time, with shipping tags on them bearing Van Frank's name; thus showing the whisky had been shipped to him. These labels could be read by any one whose attention they attracted, but Van Frank testified he never noticed his name on them. Another circumstance relied on to show he had knowledge the goods in controversy were purchased in his name was that one day in November, 1899, he got a telegram from the plaintiffs, and opened it in the presence of Sugg, saying: "This is a message from those Greenbrier people," and asking what it meant. Sugg replied, "It means for you people to pay us some money," to which Van Frank answered, "Yes." It was also shown that the city of Cape Girardeau had issued a merchant's license to F. H. Dunlop, agent.

The above is a summary of the facts which are said to have been for the jury's consideration as going to establish an actual or ostensible authority in Dunlop to make the purchases, and we think they were sufficient for that purpose. The incident of the telegram, which probably requested Van Frank to pay for some of the whisky, or, if it did not, led Sugg to tell him that the plaintiffs wanted him to pay them, and Van Frank to assent to Sugg's remark, was evidence that the former recognized a responsibility for Dunlop's purchases, and ratified, if he had not previously authorized, them. Moreover, some of the goods were bought afterwards, and, as Van Frank made no protest then against being regarded as responsible, his behavior may have induced Sugg to believe Dunlop had not acted without authority. There was testimony, too, that the whisky was billed to Van Frank, and that the plaintiffs addressed some correspondence to him about it. Of course, all those things could have happened without Van Frank's knowledge or complicity. They are consistent with the view that he did not know the whisky had been bought on his credit until he was apprised of the truth by the first suit against him, which was brought by the Rothman Distilling Company. Still, as he was aware that his son-in-law was insolvent, had made an assignment for the benefit of his creditors, and that the hotel had been sold under a deed of trust, he must have been aware that Dunlop had no commercial standing; and it strikes one as somewhat improbable that he made no inquiry as to how such a large quantity of whisky as he saw in the wareroom was procured. On the other hand, Sugg never asked Van Frank about Dunlop's authority, which is a noticeable fact, too. On the whole, we think the case was for the jury to decide.

We will next examine the errors assigned because of the admission of certain evidence and the rulings on the requests for instructions; and, in treating the questions presented by those assignments, it will be convenient to premise some observations of a general nature in regard to proving an agency, and the scope of the authority that accompanies it. An agent may possess direct authority to bind his principal in a particular transaction; that is to say, the principal may expressly empower the agent to bind him; and this direct authority will carry with it, by implication of law, such powers as are suitable and reasonably necessary to accomplish the intended purposes, though no secondary or incidental powers were mentioned between the principal and the agent. Then, too, the custom of business will commonly endow an...