Merriman v. Fulton

• Decision Date: 31 January 1867
• Parties: JOHN MERRIMAN v. FULTON, HENSLEY & CROSS.
• Court: Texas Supreme Court

29 Tex. 97

JOHN MERRIMAN

v.FULTON, HENSLEY & CROSS.

Supreme Court of Texas.

January, 1867.

In a contest about the powers of an agent, the question is, not what did the principals intend by the appointment, but what did they actually do in the way of conferring authority.

When the principals placed in the hands of the agent a paper which apparently did make him their agent, and from which third persons had a right to infer that he was their agent, they were bound by his acts, done within the scope of his apparent authority, in dealing with such third person.

Where the defendants plead and set out their own letter of appointment and instructions, in order to plead that the lumber delivered was not of the quality ordered, the plaintiff need not give the letter in evidence. It is before the jury as a fact, and it is for them to decide whether the agent has exceeded his authority.

Where an express authority is conferred by an informal instrument, such as a letter of advice or instruction, or a loosely-drawn order, it is construed with more liberality than a more formal and deliberate answer.

The agent is only bound to comply substantially with his order.

Where the instruction was not founded upon evidence, and it is altogether too favorable for the appellant, he cannot complain of it.

It is a well-settled rule of law, that the principal is bound by the act of his agent, done within the scope of his apparent authority, in dealing with innocent third persons, although such act may be in direct violation of his private instructions.

Where a new trial was asked in order to prove facts already proved, but which are immaterial to the issues on which the verdict really rested, the new trial was properly refused. Pas. Dig. art. 1470, note 566.

A verdict should not be disturbed to give an opportunity of letting in light testimony, which is not likely to produce a different result, especially when witnesses have been examined to the same point.

Where the case made by the evidence is consistent with the petition, the defendants have no right to complain that the evidence is stronger against them than they expected.

APPEAL from Calhoun. The case was tried before Hon. FIELDING JONES, one of the district judges.

Fulton, Hensley & Cross, being merchants at Lavaca, Texas, addressed the following letter to A. W. Canfield:

“LAVACA, September 25, 1858.

Capt. A. W. CANFIELD:

DEAR SIR: Below please find memorandum of cypress lumber for schooner Diamond, which please have filled to the letter.

5,000 feet 3/4-inch cypress, 14, 16, 18, and 20 feet long and very wide.

10,000 feet 1-inch, from 12 to 24 feet long and all wide, some to be 2 feet wide.

7,500 feet 1 1/4-inch, very wide, some to be 2 feet wide.

7,500 feet 1 1/2-inch, very wide, some to be 2 feet wide.

5,000 feet 2-inch, very wide, some to be 2 feet wide.

300 first quality cypress posts, 4 x 5, 13 feet long, and make balance of cargo of heart cypress shingles.

We want the best quality of cypress lumber, and are not willing to take or pay for any other, and please instruct your friend Russell to get the best, and oblige yours, very truly,

FULTON, HENSLEY & CROSS.”

Canfield delivered this letter to R. B. Russell, of Orange, Texas, it being understood that the lumber was to be obtained at Sabine city, and brought to Lavaca on Canfield's schooner, Diamond. Russell exhibited the letter to, and left a copy with, Merriman, the lumber-man, who filled the order by delivering to Russell the quantity of lumber, for which Russell receipted, “for Fulton, Hensley & Cross.” The bargain was at $20 per thousand.

When Canfield's schooner delivered the lumber at Lavaca, Fulton, Hensley & Cross objected, that the lumber did not correspond to that ordered, and, after having ordered it landed at Forbes & McKee's wharf, and sold some of it, they refused to receive it. The sale was before they had examined it, and they refused to receive payment. Canfield called a “board of survey,” on 22d November, 1858, and, after inspection, the board decided that the lumber did not correspond to the order. And thereupon the lumber was left on Forbes & McKee's wharf without a claimant, and they disposed of it for the benefit of whomsoever it might concern, and retained the money.

Merriman sued Fulton, Hensley & Cross for the invoice value of his lumber. They denied the purchase; denied the authority of Russell; insisted that they dealt with Canfield only, and plead the inferior quality and exact difference of the lumber as an excuse for not receiving it. They also plead that the lumber was not consigned to them, but to another firm. There were immaterial exceptions to the petition, which was a good quantum meruit count. One of the exceptions was to allowing an amendment, so as to cure a variance of date after demurrer.

Although the defendants plead their letter as a justification, and to show the difference between the lumber ordered and the invoice, yet when the plaintiff offered it in evidence, they objected to it on the ground of its immateriality, and, the objection being overruled, they saved the exception.

The plaintiff proved this letter. Canfield swore that he solicited the order and obtained it, so as to have return freight for his schooner; that he sent it to Russell to have the order filled at the mill of the plaintiff, on the Sabine river, and the lumber was returned as freight on the Diamond; that witness recommended Russell; that the lumber was received and freighted on the Diamond, and the cargo partly lost by stress of weather; that the defendants ordered the lumber to be landed on Forbes' wharf; after the landing, the witness claimed a contribution of the defendants, as average for damage to his vessel; Cross refused to have anything more to do with the lumber, and witness afterwards abandoned his claim for average; it had been agreed that the Diamond should receive $10 per thousand for freights. All the lumber was good except a few of the fence posts, and very little other; the lumber was shipped to Canfield & Pendexter. The survey was proved. The captain of the Diamond swore that he received the lumber on his vessel; it was of excellent quality, except a few of the fence posts; some so wide that it would not go in the hatches, and it was stored on the deck, from which it was lost by stress of weather. The lumber was landed on the wharf of Forbes, by the instructions of the defendants, because their wharf was broken down. The defendants did not see the lumber until after it was landed.

Russell proved his agency; his order to the mill; his receipt of the lumber ““on account of defendants,” and explained the inferiority of the fence-posts; all he did he swore was for the defendants; that he contracted for $20 a thousand, and it was worth it. His whole agency was founded on the letter to Canfield, and the witness acted under his construction of the power. The lighter-man proved that the lumber was No. 1. A witness proved that Forbes & McKee bought of the defendants some five thousand feet of lumber, which was excellent; that the defendants afterwards rejected payment for it, refused to render an account to Forbes & McKee, and Forbes & McKee sold it on account of whoever it concerned, and held the proceeds. The survey was proved, and one of the board believed the facts to be as stated. The defendants offered proof to show that in dealing the plaintiff and lighter-man, Russell, disclosed no agency, but seemed to be acting for himself. Russell, in rebuttal, denied this conversation, and his receipt to Merriman for the lumber proved the contrary.

So that the whole case rested upon the authority given by the letter, and upon the narrow difference in the quality of the lumber, as a reason for refusing to receive it, or rather rejecting it, after it had arrived and some acts of ownership had been exercised over it by the defendants.

The jury returned a verdict for the plaintiff for $583.48, for which there was judgment; this was $80 less than the price charged.

There was a motion for a new trial, founded on affidavits noticed in the opinion; but the facts offered were rather cumulative than going to disprove the case made upon the agency, the delivery of the lumber upon the Diamond, and the liability of the defendants to the plaintiff then and there. As the opinion mainly turned upon the instructions of the court, and the chief justice has nicely drawn the distinctions on the law of agency, the instructions are here given in full.

“I charge you, that if you believe from the evidence that the defendants transmitted by Canfield to Russell an order for lumber to be purchased by him for defendants, at plaintiff's mill, it would constitute him, Russell, the agent of the defendants, so far as he acted in purchasing the lumber of the quality and description contained in the order or bill furnished by the defendants; and when the lumber was so delivered to and received by Russell, the defendants would be liable to the plaintiff for the value of the lumber, as agreed on at the place where it was delivered to Russell, and you should so find. And I charge you, that if you believe that the quality and description of the lumber received was such as the order described, the defendants would be liable for it, although the quantity...