Hodkinson v. McNeal Machinery Co.

• Decision Date: 04 December 1911
• Citation: 161 Mo. App. 87,142 S.W. 457
• Parties: HODKINSON v. McNEAL MACHINERY CO.
• Court: Missouri Court of Appeals

142 S.W. 457

161 Mo. App. 87

HODKINSON v. McNEAL MACHINERY CO.

Springfield Court of Appeals. Missouri.

December 4, 1911.

On Motion for Rehearing, January 8, 1912.

1. PRINCIPAL AND AGENT (§ 17)—APPOINTMENT OF SUBAGENT—AUTHORITY.

Plaintiff authorized another to sell certain machinery for him, with authority to appoint a subagent, and such other executed a writing appointing such subagent to sell the machinery, which authorized him to sell it in gross for a sum to net the owner $2,200, or to sell it by pieces at prices acceptable to the agent, and provided that, if so sold, all of the proceeds should be paid to him until he received $2,200, and shortly thereafter the agent consented that the separate pieces might be sold at the prices indicated on a schedule furnished him by the subagent. Held, that the duty of the subagent to sell the property was not purely ministerial, but he had a discretion to exercise in its sale, so that he could not himself authorize a subagent to sell the machinery and collect the price.

2. PRINCIPAL AND AGENT (§ 17)—APPOINTMENT OF SUBAGENT—AUTHORITY.

As a rule, an agent does not have authority to appoint a subagent, unless that power is contained in his appointment.

3. PRINCIPAL AND AGENT (§ 17)—APPOINTMENT OF SUBAGENT—POWER.

The exceptions to the general rule that an agent cannot appoint a subagent, unless expressly so authorized, are that he may appoint a subagent to perform purely ministerial acts not requiring the exercise of discretion or involving personal confidence, or where the nature of the business requires the employment of sub-agents.

4. PRINCIPAL AND AGENT (§ 120)—SCOPE OF AGENCY—EVIDENCE—WRITING.

Where the appointment of an agent is by writing, the writing must be looked to to ascertain his authority.

5. PRINCIPAL AND AGENT (§ 17)—POWERS OF AGENT—RECEIVING PRICE.

In absence of restriction, the power to sell implies the power to receive and transmit the price to the principal, and hence an agent authorized to receive the price could not appoint a subagent to make the sale in view of the confidence so vested in him.

6. PRINCIPAL AND AGENT (§ 148)—AUTHORITY OF AGENT.

One purchasing articles from another, selling ostensibly as agent, was put upon his guard as to the alleged agent's authority, placing the burden upon him of showing authority when sued by the owner to recover the articles.

7. REPLEVIN (§ 80)—ACTION—DAMAGES.

Attorney's fees expended by plaintiff in a replevin suit are not proper elements of damage.

8. PRINCIPAL AND AGENT (§ 148)—UNAUTHORIZED ACT—KNOWLEDGE—SUFFICIENCY OF EVIDENCE.

Evidence in replevin in which defendant claimed to have purchased from an alleged sub-agent of plaintiff held to show that defendant was not an innocent purchaser without knowledge of the probable want of authority of the alleged subagent to sell for plaintiff.

9. APPEAL AND ERROR (§ 1176)—DISPOSITION —REVERSAL—RENDITION.

Where, in replevin for machinery, plaintiff alleged ownership, defendant by pleading, in addition to a general denial, that he claimed title through purchase from a certain person as plaintiff's agent, in effect conceded that ownership was in plaintiff, unless defendant acquired title through such agent, so that upon deciding that the agent did not have authority to sell to defendant the Court of Appeals will direct judgment to be rendered for plaintiff upon reversal, without ordering a new trial; there being no question of ownership to be tried except as to the purported agent's authority, which is already determined.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by F. C. Hodkinson against the McNeal Machinery Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with directions to enter judgment for plaintiff.

McIndoe & Thurman, for appellant. Thomas Dolan, for respondent.

COX, J.

Action in replevin for possession of certain mining machinery. Trial by court, judgment for defendant, and plaintiff has appealed.

Plaintiff was the owner of certain mining machinery, located at an abandoned mine some eight miles from Joplin. Plaintiff lived in a distant state, and, desiring to dispose of this property, sent a power of attorney to O. D. Royse, authorizing him to dispose of it. Royse by writing appointed Campbell & Durnell as his agents to sell the property for him. Campbell & Durnell authorized one John Moore to sell the property for them. Moore pretending to act as agent for the owner, sold a part of the property to defendant, collected the purchase price, and absconded. On learning of these facts, plaintiff instituted this suit to recover the property. The trial was before the court, and at the close of the testimony a great number of declarations of law were given and refused, and error is assigned largely upon the court's action in that respect, but, in the view we take of the case, it will not be necessary to discuss that.

As far as the essential facts of the case are concerned, there is little conflict in the testimony. It is conceded that Royse had the authority to appoint Campbell & Durnell as his agents to sell the property, but plaintiff denies that Campbell & Durnell could appoint Moore as agent to sell the property, and insists that Moore could not make a sale that would pass title without plaintiff's assent or subsequent ratification, and on this question the case hangs.

Generally speaking, the appointment of an agent does not authorize the agent to appoint a subagent unless that power is granted in the appointment. 31 Cyc. 1380, 1425; Atlee v. Fink, 75 Mo. 100, 43 Am. Rep. 385; Land & Lumber Co. v. Chrisman, 204 Mo. 371, 102 S. W. 973; Warner v. Martin, 11 How. 209, 13 L. Ed. 667; Barnard v. Coffin, 141 Mass. 37, 6 N. E. 364, 55 Am. Rep. 443; Harris v. San Diego Flume Co., 87 Cal. 526, 25 Pac. 758; McKinnon et al. v. Vollmar, 75 Wis. 82, 43 N. W. 800, 6 L. R. A. 121, 17 Am. St. Rep. 178.

There are certain well-recognized exceptions to the general rule, one of which is that the performance of purely ministerial acts which do not require the exercise of discretion or judgment and do not involve personal confidence and trust may be delegated by an agent without specific authority to do so being given by the principal. Neiner v. Altemeyer, 68 Mo. App. 243; Nichols v. Larkin, 79 Mo. 264.

Another exception is that the nature of the business or the necessities of the case require the employment of subagents. Whitney v. Burnham, 48 Mo. App. 340; St. Louis Gunning Adv. Co. v. Wanamaker & Brown, 115 Mo. App. 270, 90 S. W. 737; Murphy v. Building Co., 155 Mo. App. 649, 135 S. W. 446. In this case it is conceded that Royse, who was the agent of plaintiff, had authority to appoint a subagent. Therefore Campbell & Durnell were authorized to sell this property; but could Campbell & Durnell delegate that authority to Moore or any one else? If so, where is the delegation of authority to stop? Here the general agent, Royse, appointed a subagent, Campbell & Durnell. The subagent appointed a subagent under them, to wit, Moore. If Campbell & Durnell, without specific authority, could do that, then Moore could do it also, and so the appointment of subagents might go on "ad infinitim," and the owner of the property lose all control of his business, and never be able to know one day in whose hands his business might be placed the next day. No court as far as our research extends has ever promulgated so monstrous a doctrine. While an agent may, if authorized to do so, appoint a subagent who may bind the principal, and may, in certain cases, appoint a subagent...