McAlpin v. Cassidy

• Decision Date: 01 January 1856
• Citation: 17 Tex. 449
• Parties: ROBERT M. MCALPIN AND ANOTHER v. THOMAS CASSIDY AND ANOTHER.
• Court: Texas Supreme Court

17 Tex. 449

ROBERT M. MCALPIN AND ANOTHER

v.THOMAS CASSIDY AND ANOTHER.

Supreme Court of Texas.

1856.

Every agency carries with it or includes in it, as an incident, all the powers which are necessary or proper, or usual, as means to effectuate the purposes for which it was created, and none others.

In this respect there is no distinction, whether the authority given to an agent is general or special, express or implied.

If the agency arises by implication from acts done by the agent with the tacit consent or acquiescence of the principal, it is deemed to be limited to acts of a like nature, if from the general habits of dealing between the parties, it is deemed to be limited to dealings of the same kind.

An agent employed to receive payment is not, in general, clothed with authority to compound the debt or to commute it for something else, as, for example, his own debt; but can only receive it in money, unless his particular employment confers the authority, or it can be implied from the general usage of business or the habits of dealing between the parties.

See this case for circumstances under which the judgment was reversed for error in overruling the motion for a new trial, on the ground that the evidence did not warrant the jury in finding that the agent had authority to receive payment by commutation for his own debt.

See this case for evidence which was held not to be sufficient to warrant a finding that a certain person was held out to the world by the plaintiff as his partner.

The admission or declaration of an agent binds his principal only when it is made during the continuance of the agency, in regard to a transaction then depending.

The refusal to reverse where improper testimony has been admitted and excepted to, on the ground that the party was not prejudiced thereby, is only applicable where the case is made out by competent evidence beyond a question.

Appeal from Travis. Tried below before the Hon. Thomas H. Duval.

Suit by the appellants, late merchants, partners, trading in the city of New Orleans under the firm name and style of R. M. McAlpin & Co., against the appellees, to recover the sum of $915.20 for goods and merchandise furnished, sold and delivered in August, 1853. Answer by defendants that they had paid the amount sued for to D. W. Field, whom they alleged to have been the agent and partner of plaintiffs, and to B. F. Hill, whom they allege to have been the agent of the plaintiffs to receive the same. The answer specified the date and character of each payment, as afterwards proved.

The testimony on the trial was as follows:

The plaintiffs read in evidence the deposition of James McCord, who testified that he was acquainted with R. M. McAlpin & Co.; that Cassidy & Finnin purchased goods of plaintiff, consisting of groceries, wines, liquors, etc., from 1852 to 1853, in New Orleans; the goods were taken from the store of plaintiffs and put on board one of the Harris & Morgan's line of steamers, bound to Port Lavaca. Witness was warehouseman at the time, and his drayman took the goods to the steamer. The goods were ordered for defendants by Ben. F. Hill. Witness thinks that R. M. McAlpin himself sold the goods. R. M. McAlpin and Peter S. Miller composed the firm of R. M. McAlpin & Co. Witness has frequently seen Ben. F. Hill in the store of the plaintiffs, and has often seen him introduce strangers to plaintiff with a view of selling them goods.

The plaintiffs then introduced A. J. Hamilton, who testified that Cassidy acknowledged to him that they had received the goods, but at the same time said that they had paid Hill and Field for the goods.

The defendant then read in evidence the deposition of Ben. F. Hill, who testified that he was acquainted with all the parties to this suit; that he was also acquainted with D. W. Field; was informed that said Field died in November or December, 1853. Said Field was, before and at the time of his death, in the employ of plaintiffs, as their agent in collecting money and enlarging their business in Texas. The said Field was also a member of the firm of Ben. F. Hill & Co., of Port Lavaca; and while in said firm, it was understood that said Field should remain in the employ of R. M. McAlpin & Co., to influence the trade of the south and west to the house of plaintiffs. Witness has known said Field to collect money due plaintiffs; has never known him to announce himself as being interested in said house any further than as a clerk; and has never known him to arrange accounts in any other way than the collection of the same in money. Witness knows said Field to have been the agent of plaintiffs, with power to solicit orders for said firm, and to settle and arrange all claims due them. Witness last saw said Field in November, 1853, and he was in the employ of said firm. Said Field informed witness in regard to the claim against the defendants, that he had collected two hundred dollars on account; that he was satisfied that Cassidy, one of the defendants, was considerably involved; and he placed the balance of the claim against defendants in the hands of witness and authorized him to settle said claim in any way that would be advantageous to the house in New Orleans. Said witness drew three drafts on the defendants in favor of Hugh H. Haynie, Francis Dieterich and George Hancock, amounting to two hundred and sixty dollars in all. The firm of Ben. F. Hill & Co. was composed of witness, William G. Hubert, D. W. Field and James McAlpin. James McAlpin traveled with said Field, and assisted him in collecting and arranging claims due plaintiffs. James McAlpin was a brother of Robert M. McAlpin, but had no interest in the house of R. M. McAlpin & Co., further than his being their agent. Robert M. McAlpin and Peter Miller composed the firm of R. M. McAlpin & Co.

Defendants then introduced the deposition of E. Nash, which proved that he was acquainted with the parties to the suit, and also acquainted with D. W. Field; was of the opinion that Field was agent of plaintiffs. Field was in Austin in the spring or summer of 1853, soliciting orders for the house of R. M. McAlpin & Co. The firm of B. F. Hill & Co., Lavaca, consisted of Ben. F. Hill, Wm. G. Hubert, James McAlpin, and as the witness understood, R. M. McAlpin & Co., of New Orleans. Witness understood that James McAlpin and D. W. Field were agents for plaintiffs. James McAlpin was a brother of R. M. McAlpin, but had no interest in the house of R. M. McAlpin & Co. The firm of R. M. McAlpin & Co. is dissolved, but knows no reason for dissolving the partnership.

The defendants then introduced Hugh H. Haynie, who testified that he loaned Ben. F. Hill one hundred and thirty dollars in December, 1853, and in February, 1854, he called on Hill for the money, and Hill gave him an order on Thomas Cassidy for the amount. Witness presented the order, and Cassidy gave his note to witness for the amount, after deducting an account which he, witness, owed Cassidy. Witness told Cassidy that it was an individual debt between him and Hill; that Hill was a member of the firm of Ben. F. Hill & Co., Port Lavaca, Texas. Witness understood that said Hill was, in some way, connected with some large house in New Orleans, but don't know what house.

The defendants then introduced F. Dieterich, who testified that he saw Field in Austin in 1853. Ben. F. Hill informed witness that he (Hill) and Field were engaged in business together in Port Lavaca. Hill owed witness fifty dollars and thirteen cents for goods. Hill gave witness an order on Thomas Cassidy for the amount, and Cassidy settled the order. Understood from Field that he (Field) was connected with a house in New Orleans.

The defendants then introduced John J. Grumbles, who testified that about the 1st of April, 1853, he went to New Orleans from Austin in company with Ben. F. Hill and Dr. Joseph W. Robertson, and that on their arrival at New Orleans, Hill invited them to accompany him to the house of plaintiffs, which they did and were then introduced by Hill. Hill and the plaintiffs conversed together in the presence of witness in the most friendly terms about business matters in Texas, and the relation existing between them appeared to be intimate and friendly. While witness was at the store of plaintiffs, Hill and R. M. McAlpin retired to the counting room and conferred awhile together. Hill carried over with him to New Orleans a considerable amount of money, part of which he paid over to McAlpin. Witness soon after left New Orleans and went to Alabama, and on his return to the former place found a letter from Hill, requesting him to call and see plaintiffs. He did so, and plaintiffs proffered to sell him some groceries, saying it made no difference about the money, as he could settle that in Texas with Hill, or with Ben. F. Hill & Co., of Port Lavaca. Plaintiffs apparently had great confidence in Hill, and expressed their satisfaction at having connected with their house a man so well known and influential as Capt. Hill. Witness asked them if they were well acquainted with Hill, as he was surprised to see that they had so much confidence in him. Hill took with him from Austin about twenty-five hundred dollars, and paid R. M. McAlpin & Co. about one thousand dollars. Cassidy had a claim against the government for three or four hundred dollars, which he placed in Hill's hands for collection. Hill said he had lost the claim, for some time, and intended to get a duplicate of it, but afterwards found the original. Witness did not know anything particularly about the matter, except what Hill told him before they left Austin, about the 1st of April, 1853, that he had collected the money on it. Hill told witness at the time that he had got some money from the treasury, but witness did not know how much. Witness understood that the government claim, or draft, belonged to Cassidy, but did not know what Hill was to do with it, or the money collected...