Mcdonald v. Cole
| Decision Date | 01 April 1899 |
| Citation | 46 W.Va. 186,32 S.E. 1033 |
| Court | West Virginia Supreme Court |
| Parties | Mcdonald. v. cole et al. |
Action by Administrator, —Evidence op Authority — Corporations — Misrepresentations op Agent — Nonjoinder of Parties — Plea in Abatement—Recoupment—Instructions.
1. Where one sues as executor or administrator, or in other representative character, there need be no proof of his appointment or authority, unless a plea denies it. A plea to the merits admits the right of the plaintiff to sue as he does.
2. The false statement of an agent of a corporation appointed to buy timber for it in making the contract, that the company is a partnership, does not bind its members or the corporation to liability as partners. Agent's misrepresentations and wrongs, how far binding.
3. The nonjoinder, as defendants, of other persons, in an action against a partnership, must be pleaded in abatement filed at rules. The defendants sued cannot avail themselves of it after a plea to the merits.
4. Recoupment for delay in execution of a contract cannot be allowed where the delay is owing to the act or fault of the party himself.
5. It is not error to refuse an instruction which puts a legal proposition, though sound, if the evidence to present it as pertinent to the case is slight, and only colorable, and does not fairly present it for consideration, and where a verdict finding according to the instruction would be set aside as without sufficient evidence.
(Syllabus by the Court.)
Error to circuit court, Cabell county; e. S. Doolittle, Judge.
Action by Bilton McDonald, administrator, against J. o. Cole & Co. Judgment for plaintiff. Defendants bring error. Affirmed.
Campbell, Holt & Campbell, for plaintiffs in error.
Simms & Enslow and Herbert Fitzpatrick, for defendant in error.
BRANNON, J. McDonald, administrator of justice, brought an action of assumpsit in the circuit court of Cabell county against J. O. Cole and C. Crane, as late partners in the firm name of J. O. Cole & Co., to recover pay for some timber sold and delivered by the plaintiff's intestate to the defendants. The defendants pleaded non assumpsit, payment, and filed notice of recoupment, and by sworn plea denied that the defendants had been partners. The case resulted in a verdict for the plaintiff for $1,800, and the court, refusing a new trial, rendered judgment, from which the defendants obtained a writ of error.
The defense makes the point that, under the plea of non assumpsit, it rested on the plaintiff to prove that he had been legally appointed administrator. This position cannot be sustained. There is a plea distinctively called, in the books on common-law pleading, a plea of "ne unques executor" (or "administrator"), —"never executor." It must be used where it is intended to deny the right of the person to sue as executor or administrator, else his capacity to sue as such is admitted. 1 Chit. PI. 517; 2 Lomax, Ex'rs, 380. The cases of Brown v. Nourse, 55 Me. 230; Lang-don v. Potter, 11 Mass. 313; Champlin v. Tilley, 3 Day, 303; and Collins v. Ayers, 13 Ill. 358, —show, on common-law authority, that, where an executor or administrator sues, there must be the plea of ne unques, else no proof of appointment is required. Generally, where one sues in a representative capacity, it need not be proven, unless there is a plea denying it. Chicago Legal News Co. v. Browne, 103 Ill. 317. Where there is a plea of general issue, or other plea to the merits, it admits the capacity of the plaintiff to sue. Alderman v. Finley, 52 Am. Dec. 244; Pullman v. Upton, 96 U. S. 328; 1 Bart. Law Prac. 501; Bank v. Curtis, 36 Am. Dec. 492. So it is where a corporation sues. Our statute was only necessary to require an oath to a plea denying incorporation. I regard the above-named plea as one in abatement, as it goes to the disability of the person suing or sued. But the Massachusetts case says it may be pleaded in bar or abatement.
The second assignment of error is based on an instruction that if Lewis Cole was the agent of the defendants to purchase timber, and, when he entered into the contract with the plaintiff's decedent, he represented that the defendants were partners, and that if the plaintiff's decedent knew no other, and acted on such representation, and sold the timber which came to the hands of the defendants, then they were liable on the contract. I do not consider this instruction good law. I cannot see that, if a corporation appoints an agent to buy timber, his false declaration that stockholders or officers of it are partners would make them such, and bind them to a liability as such. True, the acts and statements of an agent, acting, in making a contract, within the scope of his authority, bind the principal as to all the elements of the contract, though particular statements were unauthorized. Crump v. Mining Co., 7 Grat. 352. False and fraudulent statements of an agent, in the course of business within the scope of his authority, bind the principal. His torts done in the course of the principal's business, though unauthorized or forbidden, bind the principal. 1 Am. & Eng. Enc. Law (2d Ed.) 1143, 1151, 1159; Mechem, Ag. § 714. See discussion as to negligence and torts of agents in Bess v. Railway Co., 35 W. Va. 492, 14 S. E. 234; Gillingham v. Railroad Co., 35 W. Va. 588, 14 S. E. 243; Gregory's Adm'r v. Same, 37 W. Va. 606, 16 S. E. 819. From these principles it might seem that such statements by this agent would make the parties liable as partners. But I think they do not afford the test. They do not mean the agent of one man can make another liable by representing that he is the purchaser. The act must be within the scope of authority, and that authorizes him to make only his real employers liable, not others and in a different character. But, though the instruction is bad law, is it reversible error? True, where there is any evidence to sustain the theory of an instruction, it ought to be given, as I stated in Carrico v. Railway Co., 39 W. Va. 100, 19 S. E. 571; but Bloyd v. Pollock, 27 W. Va. 75, and other cases, hold that, if the evidence is so slight to sustain the theory propounded by an instruction, it ought not to be given; and Clay v. Robinson, 7 W. Va. 349, holds that an erroneous instruction does not reverse where it is manifest that the defendant could not have been prejudiced by it. In the application of these principles, regard must be had to the particular case. In this case there was not a syllable of...
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