Mills v. Berla

• Citation: 23 S.W. 910
• Decision Date: 08 November 1893
• Docket Number: (No. 57.)
• Parties: MILLS et al. v. BERLA et al.
• Court: Court of Appeals of Texas

23 S.W. 910

MILLS et al. v. BERLA et al.

(No. 57.)

Court of Civil Appeals of Texas.

November 8, 1893.

Appeal from El Paso county court; J. E. Townsend, Judge.

Action by Berla & Co. against Anson Mills and others. From a judgment for plaintiffs, defendants appeal. Reversed.

T. L. Nugent and M. W. Stanton, for appellants. Leigh Clark, for appellees.

JAMES, C. J.

Appellants, in 1889, were owners of the Grand Central Hotel in El Paso, and had caused plans and specifications to be made by George P. King, an architect, for certain improvements thereon. It is conceded that to the extent of such plans and specifications, and the contract made thereunder, George Paul King was their agent and representative. He engaged appellees to do certain plumbing work upon the premises not contracted for in the plans and specifications, during the absence of the owners; and when one of them (Anson G. Mills) returned, and found that King had directed this work to be done on their behalf, he stopped the same, denying that King had any authority to bind them in the premises, and repudiated the arrangement. At this time considerable work had been done by Berla & Co. Afterwards appellant Mills entered into an oral arrangement with Berla & Co. to complete the work they had begun for the price of $90, and thereupon the latter completed the work, and presented a bill consisting of $90, and also $278.84, for the work previously done, and certain other items amounting to $15.80, which bill was not paid. Appellants contended that they owed the $90 only; that they had never agreed, and were not bound, to pay anything further, — the appellant Mills testifying that he thought the entire bill was included in the $90, and that the $90 was to cover the entire work and materials sued for by Berla & Co. Appellees contended that appellants were bound by the acts of King; that appellants, having accepted and retained the benefits of appellees' labor and material, were estopped to deny their liability; and that the $90 was only for the completion of the work from the point at which it had been stopped. The plaintiffs, Berla & Co., sued for $385.14, composed, as nearly as we can arrive at it from the record, of $278.84, $90, and three items in an exhibit to plaintiffs' amended original petition for $1.75, $6.25, and $7.80. The verdict was for plaintiffs for the sum of $385.14, with interest from January 1, 1890.

We do not consider that it would serve any beneficial purpose to discuss all of the 20 assignments of error presented in appellants' brief of 101 pages. After disposing of the exceptions taken to the rulings of the judge on the testimony, and giving our views on the material charges, it is probable that on another trial there will be no cause for the numerous assignments. The court erred in admitting the declaration of the architect King to establish his authority to make the contract with Berla & Co. Agency cannot be proved by the declaration of the alleged agent, unless the principal be in some way connected with the declarations; and of this there was no evidence. The acts of a party are likewise inadmissible to prove his agency. If agency is established by competent testimony, then the acts and declarations of the agent made in the scope of his agency will be the acts of the principal. The first and second assignments are well taken. Noel v. Denman, 76 Tex. 306, 13 S. W. Rep. 318; Coleman v. Colgate, 69 Tex. 89, 6 S. W. Rep. 553. Although King may not have been appellants' agent as to the subject-matter of the contract with Berla, yet he was their agent for the principal improvements then being made on the hotel; and the circumstances were such that it was proper for the court to submit to the jury whether or not, in making the...