J. B. Colt Co. v. Black

• Decision Date: 29 November 1926
• Docket Number: 25985
• Citation: 110 So. 442,144 Miss. 515
• Court: Mississippi Supreme Court
• Parties: J. B. COLT CO. v. BLACK. [*]

110 So. 442

144 Miss. 515

J. B. COLT CO. v. BLACK. ^[*]

No. 25985

Supreme Court of Mississippi

November 29, 1926

Division A

1. PRINCIPAL AND AGENT. Compromise settlement by agent is no defense, in absence of showing of agents authority to make compromise without approval of principal.

Alleged compromise settlement of notes with agent for holder does not constitute a defense to a suit on notes, in absence of proof of agent's authority to make compromise agreement without approval of principal.

2. PRINCIPAL AND AGENT. One asserting compromise settlement of indebtedness with creditor's agent has burden of showing agency and agent's authority.

One asserting compromisel settlement of indebtedness by agent for creditor has burden of proving, not only fact of agency, but authority of agent to make compromise agreement.

HON. W W. MAGRUDER, Special Judge.

APPEAL from circuit court of Attala county, HON. W. W., MAGRUDER Special Judge.

Suit by the J. B. Colt Company against W. H. Black. Judgment for defendant, and plaintiff appeals. Reversed and judgment rendered.

Judgment reversed.

J. D. Guyton, for appellant.

It was manifestly improper for the trial court to overrule the objection to questions which presupposed that Mr. Mathis was a general agent of J. B. Colt Company. The objections challenged his authority and demanded proof thereof. The same is true both as to the receipts and alleged compromise settlement and the contents of the checks. See Jones on Evidence, Civil Cases (3rd Ed.), section 356; Riechman-Crosby Co. v. Dinwiddie, 117 Miss. 103, 77 So. 906; 2 C. J., Agency, section 665. To the same effect is Howze v. Whitehead, 93 Miss. 578, 46 So. 40, 2 C. J., Agency, section 670.

Evidence shows that Mr. Black actually knew that Mathis was only a collector. Yet the trial court permitted Mr. Black to testify over the objection that he paid this money to Mathis in full settlement. The appellee utterly failed to meet the burden of proof resting upon him to show the authority of Mr. Mathis to make a compromise settlement; and, therefore, all his testimony tending to show such a settlement with Mr. Mathis was incompetent.

The trial court should have given the peremptory instruction. The evidence shows that F. D. Mathis was a collecting agent only. Manifestly, any defects in the apparatus could not here be availed of as a defense under the ruling in Colt Co. v. Kelly, 107 So. 757, it not being shown that any defects were discovered after giving the note sued on.

The appellant asks that this cause be reversed and judgment here for one hundred twenty-nine dollars with eight per cent interest from January 3, 1923.

J. G. Smythe, for appellee.

The trial court committed no error in the trial of this cause. It was purely a question of facts between the parties; the court very properly submitted it to the jury, it decided against appellant; and he cannot successfully complain.

Colt v. Kelly, 107 So. 757, cited by appellant is not applicable here. That was on a plea of breach of warranty, while this case is on a settlement in full. It makes no particular difference what moved the agent to make the settlement, whether he thought Black had a bad light plant, or whether he thought Black could not be made to pay and, therefore, he had better settle. The question submitted was: Did he settle? We submit from the evidence in the case that the agent did settle and that Colt Company is bound by his settlement.

The appellee did not rely on the statements of Mathis to establish his agency. All of his actions, together with the statements of Albert Fortman, witness for the appellant, establish Mathis' authority and agency. We know of no better rule of law as to this question than that announced in R. C. L. 820.

OPINION

COOK, J.

This suit originated in a justice of the peace court, and was founded on a promissory note executed by the appellee on January 3, 1923, in favor of the appellant, for a balance of one hundred twenty-nine dollars due on the purchase price of a lighting plant. On August 18, 1919, the appellee purchased from appellant a lighting plant, and executed a note for two hundred ninety-nine dollars and forty-five cents, the purchase price thereof. There were various payments and credits on this note which reduced it to one hundred thirty-nine dollars, and, on May 12, 1922, the appellee executed a renewal...