Mark Century Corp. v. Tiger Broadcasting Co.

• Decision Date: 06 May 1974
• Docket Number: No. KCD,KCD
• Citation: 509 S.W.2d 737
• Parties: MARK CENTURY CORPORATION, a corporation, Appellant, v. TIGER BROADCASTING COMPANY, a corporation, Respondent. 26420.
• Court: Missouri Court of Appeals

Page 737

509 S.W.2d 737

MARK CENTURY CORPORATION, a corporation, Appellant, v. TIGER BROADCASTING COMPANY, a corporation, Respondent.

No. KCD 26420.

Missouri Court of Appeals, Kansas City District.

May 6, 1974.

Harry T. Limerick, Jr., Columbia, for appellant.

Terence C. Porter, Columbia, for respondent.

Before PRITCHARD, P.J., and SOMERVILLE and SWOFFORD, JJ.

PER CURIAM.

This action began when appellant, plaintiff below, filed suit claiming that a lease agreement existed between it and the defendant, and that said lease agreement had been breached by the defendant. Defendant was the operator of radio station KTGR in Columbia, Missouri. By the terms of the lease agreement, plaintiff was to lease to defendant a radio library and program service entitled 'Radio a la Carte'. The lease agreement was dated October 9, 1967, and was for a period of 156 weeks beginning December 1, 1967. For this service, the defendant was to pay plaintiff $7,020.00, in 36 equal monthly installments.

The petition alleged that plaintiff had fully performed all of the conditions of said lease agreement, but that defendant had failed and refused to make the payments as provided therein. Plaintiff prayed for judgment against defendant in the sum of $7,020.00.

The defendant, by its answer, denied the allegations of the plaintiff's petition, and, among other things, affirmatively stated that the lease agreement was not signed by anyone representing or acting for defendant with defendant's consent or authority.

The case was tried before the court sitting without a jury. The court found the issues in favor of the defendant. Plaintiff's after trial motions to set aside the judgment and enter a judgment for the plaintiff and its motion for new trial were overruled. This appeal followed.

Plaintiff's theory at trial and on appeal, as revealed by its jurisdictional statement and the points asserted in its brief, was that Timothy Daniels, an employee of defendant, had implied authority to execute the lease agreement on behalf of defendant. Implied authority is grounded on actual authority and consists of those incidental powers which are reasonably necessary and proper to effectuate the expressly conferred authority, and which are not known to be prohibited. Prior v. Hager, 440 S.W.2d 167 (Mo.App.1969); Wyler Watch Agency v. Hooker, 280 S.W.2d 849 (Mo.App.1955). Frequently, the incidental powers reasonably necessary to accomplish the purpose or purposes of the expressly conferred authority are not specifically delineated. Consequently, the law implies authority to do those things reasonably necessary to accomplish the purpose of the expressly conferred authority. Vaughn v. Great American Insurance Company, 390 S.W.2d 622 (Mo.App.1965); Brede Decorating, Inc. v. Jefferson Bank and Trust Co., 345 S.W.2d 156 (Mo.1961); Bredel v. Parker-Russell Min. & Mfg. Co., 21 S.W.2d 932 (Mo.App.1929); Murphy et al v. Knights of Columbus Bldg. Co., 155 Mo.App. 649, 135 S.W. 446 (1911). Thus, implied authority is actual authority which the principal intended the agent to have which lacks direct proof, but which is implied or inferred from relevant facts and circumstances as reasonably necessary to accomplish the purpose or purposes of the expressly conferred authority. Wyler Watch Agency v. Hooker, supra; E. C. Robinson Lumber Company v. Lowrey, 276 S.W.2d 636 (Mo.App.1955). It has been said that implied authority properly concerns only the extent of an express authority actually granted. Jeff-Cole Quarries, Inc. v. Bell, 454 S.W.2d 5 (Mo.1970). If no actual authority exists, no authority can be implied. Prior v. Hager, supra.

The law ordinarily indulges no presumption that agency exists, and the burden of establishing agency rests upon the party by whom it is alleged. Wyler Watch Agency v. Hooker, supra. Thus, it was incumbent upon plaintiff to show the existence of evidence both as to Daniels' expressly conferred authority and facts from which it might reasonably be implied or inferred that defendant intended Daniels to have had authority to execute the contract in question on behalf of defendant because such was reasonably necessary to carry out the purposes of Daniels' expressly conferred authority. E. C. Robinson Lumber Co. v. Lowrey, supra; Baker v. Aetna Casualty and Surety Co., 193 S.W.2d 363 (Mo.App.1946); Thimmig v. General Talking Pictures Corporation,85 S.W.2d 208 (Mo.App.1935).

Plaintiff presented only two witnesses, Franklin Charles Beck and Justin John. The testimony of Franklin Charles Beck, executive vice-president and general manager of Mark Century Corporation, was presented by deposition. Beck did not execute the lease agreement for plaintiff and never met Daniels. He testified that he did have two telephone conversations with Daniels prior to the execution of the lease agreement, but had never discussed Daniels' legal capacity. At best, his testimony merely showed he believed that Daniels had authority to enter into the lease agreement with Mark Century Corporation. Justin John, assistant...