Lightning Delivery Co. v. Matteson, Civil 3445

• Decision Date: 21 January 1935
• Docket Number: Civil 3445
• Citation: 45 Ariz. 92,39 P.2d 938
• Parties: THE LIGHTNING DELIVERY COMPANY, a Corporation, Appellant, v. SARA V. MATTESON, Appellee
• Court: Arizona Supreme Court

39 P.2d 938

45 Ariz. 92

THE LIGHTNING DELIVERY COMPANY, a Corporation, Appellant, v. SARA V. MATTESON, Appellee

Civil No. 3445

Supreme Court of Arizona

January 21, 1935

APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment affirmed.

Messrs Elliott & Lewis and Messrs. Clark & Clark, for Appellant.

Mr Frank H. Lyman and Mr. Ben L. Rudderow, for Appellee.

OPINION

McALISTER, J.

This is an action by Sara V. Matteson against the Lightning Delivery Company to recover possession of certain goods and chattels or their value. The case was heard by the court sitting without a jury, and from a judgment for the plaintiff and an order denying a motion for a new trial, the defendant appeals.

The facts shown by the record are substantially these: The plaintiff, her husband, William F. Matteson, and their only child, a daughter eleven years of age, came to Phoenix early in 1931. On September 26th of that year, and in contemplation of a separation following domestic troubles, they divided their household goods, furniture, guns, fishing tackle and personal effects, packed them in boxes and barrels, labeled those containing the plaintiff's with her name and those containing William F. Matteson's with his name and placed them in storage with the defendant, which was in the warehouse and transfer business in Phoenix. The husband had a son by a former marriage, Murray M. Matteson, to whom certain articles were given by him and the plaintiff and these were also packed in boxes and barrels, labeled with his name and placed in storage at the same time and place. Three receipts were issued by the defendant, one to each of the persons in whose name the goods had been placed in storage.

On January 29, 1932, William F. Matteson called at the defendant's place of business and asked for delivery to him of the goods in his name and also those in the name of Sara V. Matteson. The defendant released to him those in his name, but refused to deliver the goods in the name of Mrs Matteson. Immediately thereafter, however, it sent to the latter at East San Diego, California, the following telegram:

"Wire immediately authority to release your goods to William Matteson.

"LIGHTNING DELIVERY COMPANY.

"Charges Lightning Delivery Company."

This message was delivered to plaintiff that evening at eight o'clock. She did not answer it by wire, but two or three days later, that is, on February 2d, wrote the defendant acknowledging receipt of the telegram and requested it to write her an explanatory letter regarding the matter. Before this was received, however, to wit, on January 30th, the defendant delivered the goods in her name to William F. Matteson.

In surrendering them to him the defendant acted upon the following telegram, which it received from San Diego that day and was, it thought, an answer to its wire to Mrs. Matteson the day before:

"Lightning Delivery Company,

"Phoenix, Arizona.

"Deliver storage goods in my name to Wm. F. Matteson.

"SARA V. MATTESON.

"Attorney-in fact MURRAY MATTESON."

Within a very short time after delivery of the goods, the record not being clear whether it was one day or several, Murray M. Matteson, as attorney-infact for plaintiff for the articles in question by placing upon the copy of the warehouse receipt retained by the defendant when it issued the original to plaintiff under this printed language, "Phoenix, Arizona -- Received from the Lightning Delivery Co. in good order, all the articles described on the face of this receipt," this wording: "Sara V. Matteson by Murray M. Matteson Atty-in-fact." Just before this receipt was signed the defendant was shown, either by its attorney or by Murray M. Matteson, the following power of attorney which had been executed by the plaintiff and the defendant in Phoenix, Arizona, June 9, 1931:

"Know all men by these presents, that we William F. Matteson and Sara V. Matteson, his wife, of Edgewater Beach, Edgewater, Maryland, have made, constituted and appointed, and by these presents do make, constitute and appoint Murray M. Matteson, of Edgewater Beach, Edgewater, Maryland, our true and lawful attorney for us and in our name, place and stead.

"Legally to buy, sell, mortgage, exchange, and in anywise legally dispose of any and all properties, real, personal and mixed, belonging to us, wherever located. To collect and receipt for any and all debts owing to us and represent us generally in all property matters, giving and granting unto our said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in, and about the premises as fully to all intents and purposes, as we might, or could do if personally present; with full power of substitution and revocation, hereby ratifying and confirming all that our said attorney or his substitute shall lawfully do, or cause to be done, by virtue hereof."

Early in March, 1932, the plaintiff, with her warehouse receipt in her possession, went to the defendant's place of business, tendered the storage charges due and demanded her goods, but the defendant was unable to and did not deliver them. Thereupon she brought this action, which resulted in a judgment in her favor in the sum of $1,500, and it is this judgment that defendant asks this court to review.

At the trial the defendant sought to introduce in evidence the telegram of January 30th from Murray Matteson, as attorney-in-fact for Sara V. Matteson, which, it claimed, was in reply to the one it sent plaintiff the day before, but an objection to it was sustained, and this action forms the basis for one of the assignments. The court refused to admit it on the ground that the authority of the agent could not be shown by the declarations of the agent himself. This is a correct statement of the law, 21 R.C.L. 821, paragraph 6, and justified the ruling of the court at that time, and there was no development later in the trial that rendered it admissible upon the theory that the agency of Murray M. Matteson was otherwise shown, unless it be that the power of attorney had this effect. Notwithstanding this, however, its introduction would, it occurs to us, have aided the plaintiff, because it was signed by one purporting to be the attorney-in-fact of the person under whose name the property had been stored, rather than by that person herself, and this should have led the defendant to inform itself fully as to the extent of the authority under which that person acted, before surrendering the goods upon the strength of his authorization alone. By accepting his statement that he was the agent of the plaintiff and acting on it, the defendant assumed whatever risk such action carried with it; if it guessed right and the power to authorize the release of the goods and receipt for them had in fact been conferred upon Murray Matteson it would not be liable for any loss the plaintiff might suffer as a result thereof, but if it guessed wrong and the power given did not include this authority its responsibility for such loss would be clear. One dealing with an agent is presumed to know the extent of the power under which he acts and cannot escape the consequences of his own interpretation of it. Gilbert v. How, 45 Minn. 121, 47 N.W. 643, 22 Am. St. Rep. 724.

Realizing this the defendant introduced in evidence the power of attorney executed by her and her husband in June, 1931, for the purpose of showing that he had been authorized by that instrument to act for her in accepting the goods and receipting for them and that this power still rested in him on January 30, 1932. And this being true, it contends that the fact that it may have acted in the absence of positive knowledge that this power existed was immaterial, the important circumstances being that the authority had been conferred on him and had not been revoked, and, consequently, that it was not responsible for any loss she might have suffered as the result of releasing the goods to him or upon his order. Clearly the liability of the defendant depends upon the answer to the question whether the power of attorney did in fact authorize Murray Matteson to act in the premises for Sara V. Matteson.

It will be observed that the plaintiff and her husband by that instrument appointed and constituted Murray M. Matteson "our true and lawful attorney for us and in our name place and...