Kane v. Barstow

• Decision Date: 09 November 1889
• Citation: 42 Kan. 465,22 P. 588
• Court: Kansas Supreme Court
• Parties: THOMAS KANE & CO. v. L. S. BARSTOW et al

22 P. 588

42 Kan. 465

THOMAS KANE & CO. v. L. S. BARSTOW et al

Supreme Court of Kansas

November 9, 1889

Error from Rice District Court.

THE opinion states the case. Judgment for defendants Barstow and two others, at the September term, 1887. The plaintiffs Thomas Kane & Co., bring the case here.

Judgment reversed and cause remanded.

M. A Thompson, for plaintiffs in error.

Lasley & Borah, for defendants in error.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

Thomas Kane & Co. commenced their action against the defendants in error before a justice of the peace in Rice county, to recover the sum of $ 31.80 for two slate-stone blackboards, furnished the school district of which the defendants in error were the officers. An appeal was taken to the district court, a trial had by jury, and a verdict and judgment for the defendants in error. The only controverted question of fact is that of payment. The blackboards were sold to the school district by one Roberts, whose agency for the purposes of sale is undisputed. The question is, whether he was authorized to receive payment. The defendants in error paid Roberts, and defend the payment on the sole ground that, as he was the acknowledged agent for the sale, he was the apparent person to whom to make the payment. The goods were shipped about the 5th day of October, 1885, from Chicago, to L. S. Barstow, Little River, Kansas. With the goods was sent a bill with the following heading: "Settlements must be made directly with us; in no case with an agent or salesman unless he presents our written authority. We shall hold purchasers responsible for the strict observance of this rule." The blackboards were to be paid for in thirty days, but the payment was not made to Roberts until about the 22d of February, 1886. On the 2d day of November, 1885, Kane & Co. sent a bill to Barstow, stating therein that it was payable in Chicago. On the first day of January, 1886, they sent a bill to Barstow, stating therein that it was payable in Chicago. The defendants in error denied knowledge of these bills, and denied ever having received any notice not to pay to Roberts. They admitted that they received bills, but denied knowledge of the notice not to pay agents. This was the only transaction between the parties. There had been no previous dealings with Kane & Co. through Roberts or anyone else. On this state of facts the trial court was requested by the plaintiffs in error to instruct the jury as follows:

"1. Since the principal is bound only by such acts of his agent as have been authorized or allowed, proof that an agent has authority to make a sale of goods or to take orders for them to be filled by the principal, is not sufficient to prove that the agent has the authority to collect the pay for the goods afterward. The defendants must prove that Roberts, the man to whom they paid, was authorized to receive the money, or else fail in their defense.

"2. That the rule that a principal is bound by the acts of his agent which are within the apparent scope of the agent's authority, has no application to this case; this rule is applicable only where there have been previous transactions of a similar character in which the agent exceeded his powers, but which the principal ratified without question or without information, the opposite party being ignorant of the limitation of the agent's authority, and the excess in the particular instance, thereby leading the opposite party to believe that the agent has all the powers that he assumed to have."

These instructions the court refused to give, but charged the jury as follows:

"It is claimed by the plaintiffs in this suit that Roberts had no authority from them to collect payments for these blackboards, and this is a material question in this case; and as to what is the apparent authority of an agent, is also a material question for the jury to consider. A principal is bound by the representations of his agent; and is also bound by the contracts which his agent makes within the apparent scope of the agent's authority. If the agent had the authority in this case to collect money, or if the collection of money was within the apparent scope of his authority, and if the defendants made payment to him without any further knowledge of his authority except what was apparent, then it would be payment to the principal, and if such payment was made, the plaintiffs cannot recover in this case. It is within the...