Kidd v. Thomas A. Edison, Inc.

• Decision Date: 10 February 1917
• Parties: KIDD v. THOMAS A. EDISON, Inc.
• Court: U.S. District Court — Southern District of New York

239 F. 405

KIDD v. THOMAS A. EDISON, Inc.

United States District Court, S.D. New York.

February 10, 1917

This is a motion by the defendant to set aside a verdict for the plaintiff on exceptions. The action was in contract, and depended upon the authority of one Fuller to make a contract with the plaintiff, engaging her without condition to sing for the defendant in a series of 'tone test' recitals, designed to show the accuracy with which her voice was reproduced by the defendant's records. The defendant contended that Fuller's only authority was to engage the plaintiff for such recitals as he could later persuade dealers in the records to book her for all over the United States. The dealers, the defendant said, were to agree to pay her for the recitals, and the defendant would then guarantee her the dealers' performance. The plaintiff said the contract was an unconditional engagement for a singing tour and the jury so found.

The sole exception of consequence was whether there was either any question of fact involved in Fuller's authority, or a fortiori whether there was no evidence of any authority. In either event the charge was erroneous, and the defendant's exception was good. The pertinent testimony was that of Maxwell, and was as follows: He intrusted to Fuller particularly the matters connected with the arranging of these 'tone test' recitals. He told him to learn from the artists what fees they would expect, and to tell them that the defendant would pay the railroad fares and expenses. He also told Fuller to explain to them that the defendant would book them, and act as booking agent for them and would see that the money was paid by the dealers; in fact, the defendant would itself pay it. He told him to prepare a form of contract suitable for such an arrangement with such artists as he succeeded in getting to go into it and that he (Maxwell) would prepare a form of booking contract with the dealers. He told him to prepare a written contract with the artists and submit it to him (Maxwell), which he did. He told him that he was himself to make the contracts with the artists by which they were to be booked, that he was not to bring them to him (Maxwell), but that he should learn what fees they would demand, and then confirm the oral agreement by a letter, which would serve as a contract.

This is all the relevant testimony.

Joseph M. Hartfield, of New York City, for plaintiff.

Herman S. Hertwig, of New York City, for defendant.

LEARNED HAND, District Judge (after stating the facts as above).

The point involved is the scope of Fuller's 'apparent authority,' as distinct from the actual authority limited by the instructions which Maxwell gave him. The phrase 'apparent authority,' though it occurs repeatedly in the Reports, has been often criticized (Mechem, Law of Agency, Secs. 720-726), and its use is by no means free from ambiguity. The scope of any authority must, of course, in the first place, be measured, not alone by the words in which it is created, but by the whole setting in which those words are used, including the customary powers of such agents. Lowenstein v. Lombard, Ayres & Co., 164 N.Y. 324, 58 N.E. 44; Lamon v. Speer Hardware Co., 198 F. 453 119 C.C.A. 1. This is, however, no more than to regard the whole of the communication between the principal and agent before assigning its meaning, and does not differ in method from any other interpretation of verbal acts. In considering what was Fuller's actual implied authority by custom while it is fair to remember that the 'tone test' recitals were new, in the sense that no one had ever before employed singers for just this purpose of comparing their voices with their mechanical reproduction, they were not new merely as musical recitals; for it was, of course, a common thing to engage singers for such recitals. When, therefore, an agent is selected, as was Fuller, to engage singers for musical recitals, the customary implication would seem to have been that his authority was without limitation of the kind here imposed, which was unheard of in the circumstances. The mere fact that the purpose of the recitals was advertisement, instead of entrance fees, gave no intimation to a singer dealing with him that the defendant's promise would be conditional upon so unusual a condition as that actually imposed. Being concerned to sell its records, the venture might rightly be regarded as undertaken on its own account, and, like similar enterprises, at its own cost. The natural surmise...