Ilgenfritz v. Missouri Pacific Railway Co.

• Decision Date: 07 April 1913
• Citation: 155 S.W. 854,169 Mo.App. 652
• Parties: DOROTHY ILGENFRITZ, Respondent, v. MISSOURI PACIFIC RAILWAY CO. et al., CROW MOTOR CAR CO., Appellant
• Court: Kansas Court of Appeals

155 S.W. 854

169 Mo.App. 652

DOROTHY ILGENFRITZ, Respondent, v. MISSOURI PACIFIC RAILWAY CO. et al., CROW MOTOR CAR CO., Appellant

Court of Appeals of Missouri, Kansas City

April 7, 1913

Appeal from Pettis Circuit Court.--Hon. H. B. Shain, Judge.

AFFIRMED.

Judgment affirmed.

C. C Kelly for appellant.

(1) The contract of an agent in excess of his authority is void. Burks v. Stone, 65 Mo.App. 455. (2) An agent authorized to sell goods for cash has no authority to exchange them nor to take anything except cash in payment. Wheeler and Wilson v. Givan, 65 Mo. 89. (3) An agent's authority cannot be shown by his own declarations. Stove Co. v. Hardware Co., 93 Mo.App 237. (4) The scope of an agent's authority cannot be shown by his unauthorized declaration or unauthorized acts. Alt v. Groscose, 61 Mo.App. 409. (5) Where an agent acts outside of the apparent scope of his employment, his authority must be shown by other evidence than his acts. McGraw v. O'Neil, 123 Mo.App. 691. (6) A principal does not ratify an unauthorized act of his agent by accepting the benefits thereof, if without his fault conditions are such when he acquires knowledge of the unauthorized act that he cannot be placed in statu quo or repudiate the entire transaction without loss. Winkleblack v. Bank, 155 Mo.App. 1; Clark v Clark, 59 Mo.App. 532; Craver v. House, 138 Mo.App. 251, 31 Cyc. 1269. (7) Whoever deals with an agent must inquire into and determine the agent's authority. Kilpatrick v. Wiley, 197 Mo. 123.

G. W. Barnett for respondent.

(1) Agency and scope of authority need not be shown by direct evidence but may be inferred from facts and circumstances. Phillips v. Geiser Mfg. Co., 129 Mo.App. 396; Reynolds v. Railroad, 114 Mo.App. 670; Mitchum v. Dunlap, 98 Mo. 418; Hull v. Jones, 69 Mo. 587; Baker v. Thompson, 214 Mo. 500. (2) But if the agent was not originally authorized, yet his principal subsequently ratified the act of the agent. Very slight circumstances may suffice to raise a presumption of ratification. Plumber v. Knight, 156 Mo.App. 321. ratified the act or it may raise a presumption that he did ratify it. Gunning Adv. Co. v. Wannamaker, 115 Mo.App. 270. (3) As soon as the principal discovers that the agent has performed an unauthorized act he must promptly repudiate the act, and must repudiate it as a whole. He cannot adopt the favorable part of the transaction (in this case the retention of the $ 100, and the old machine) and repudiate that which is unfavorable. Bank v. Lumber Co., 54 Mo.App. 327. Bank v. Lumber Co., 102 Mo.App. 75; State ex rel. v. Harrington, 100 Mo. 170; Nichols v. Kern, 32 Mo.App. 1. (4) Having enjoyed any of the benefits of the transaction and retained them, the principal must take the transaction cum onere. McLaughlin v. Produce Co., 153 Mo.App. 508. (5) It is not necessary that we should have had possession of the goods in order that title pass so as to authorize a replevin suit. If we had had possession no suit would have been necessary. We had paid for the machine and it had been segregated--set apart from all others and shipped to Sedalia for us. If everything is done besides delivery the title passes. As between the parties delivery is not necessary. Tiedeman on Sales (4 Ed.), sec. 84 and 84a, pp. 106-109; Nance v. Metcalf, 19 Mo.App. 183.

OPINION

ELLISON, J.

--Plaintiff resides in Sedalia, Missouri, and defendant is a nonresident manufacturer of automobiles and maintains an agency for their sale in that city. Plaintiff, on September 23, 1911, bought a machine, through this agent, for $ 1200, to be paid for in this way: Turning in her old machine at $ 1050, paying $ 100 in cash and $ 50 when the new machine was delivered. The defendant company shipped the machine to Sedalia by bill of lading and attached draft for $ 1100, payable to itself, sent to a Sedalia bank with notation to notify plaintiff. Trouble began immediately to develop by refusal to deliver the machine without payment of the draft. The car arrived in October. On the 28th of October, the agent wrote the defendant at length, stating that the sale was by way of trading in the old machine. It was received by defendant two days later. The agent made a false statement that he could not get the old machine as it was involved in legal proceedings of some kind. On receipt of this letter no repudiation was made of the agent's authority; on the contrary, in a letter of the 30th defendant wrote to the agent of matters which show a continuation of his agency. On October 26th, the bank wrote defendant that plaintiff claimed her old machine was taken as part payment. Then on October 28th the defendant telegraphed the following to a friend in Sedalia: "Sedalia Bank advises that Ilgenfritz claims that he was to have credit for old car. The order from Ilgenfritz properly signed does not make such provision. Please straighten this matter out and advise us full particulars by wire today." Then again defendant telegraphed the bank to deliver the machine to plaintiff on payment of $ 860, perhaps being the sum due to it after deducting agent's commission. Plaintiff tendered the fifty dollars which was to be paid on delivery. In all correspondence by mail or telegraph...