Kirby v. W. Wheeled Scraper Co.

• Decision Date: 27 April 1897
• Parties: KIRBY v. WESTERN WHEELED SCRAPER CO.
• Court: South Dakota Supreme Court

9 S.D. 623

70 N.W. 1052

KIRBY

v.WESTERN WHEELED SCRAPER CO.

Supreme Court of South Dakota.

April 27, 1897.

Appeal from circuit court, Minnehaha county; Joseph W. Jones, Judge.

Action by Joe Kirby against the Western Wheeled Scraper Company to recover on a contract for legal services. Judgment for plaintiff, and defendant appeals. Reversed.Aikens, Bailey & Voorhees, for appellant. Joe Kirby, in pro. per.

FULLER, J.

This action by an attorney at law is based upon a demand for professional services rendered the defendant, it is claimed, at the instance and request of its authorized agent; and the power of said agent to bind his principal is the controlling question in the case. A jury trial resulted in a judgment for plaintiff, and the appeal is by the defendant therefrom, and from an order overruling a motion for a new trial. The substantive facts, briefly stated, are as follows: On the 23d day of April, 1894, the defendant, a nonresident corporation engaged in the manufacture and sale of the Western Reversible Road Machine and various other implements designed for use in making and repairing public streets and highways, entered into a written contract, through its general agent, T. W. Smith, with Fred Chamberlain, by which the latter was authorized, for the season ending August 1st of that year, to sell, in specified counties of this state, said road machines on commission, subject, in certain instances, to the approval of the company; and there is evidence tending to show that, while thus employed, this agent sold a machine about which some dispute arose, and, in consequence thereof, he counseled and retained respondent generally as the legal representative of the company. While there are certain circumstances incidentally indicating that Chamberlain held himself out to respondent as the general agent of appellant for the transaction of all business, the undisputed evidence shows that the only authority he actually possessed was conferred by the commission contract to sell the machinery for a limited time, in designated territory, at a fixed price; and no claim is made that appellant acquiesced in the transaction here involved, or ratified the same, by knowingly accepting the benefits thereof.

The statute (Comp. Laws, § 3987) providing that “a general agent to sell, who is intrusted by the principal with the possession of the thing sold, has authority to receive the price,” is certainly not broad enough to enable an agent selling...