Milwaukee & W. Inv. Co. v. Johnston

• Citation: 53 N.W. 475,35 Neb. 554
• Court: Supreme Court of Nebraska
• Decision Date: 26 October 1892
• Parties: MILWAUKEE & W. INVESTMENT CO. v. JOHNSTON ET AL.

35 Neb. 554

53 N.W. 475

MILWAUKEE & W. INVESTMENT CO.

v.JOHNSTON ET AL.

Supreme Court of Nebraska.

Oct. 26, 1892.

Syllabus by the Court.

1. Where a principal empowers an agent to transact business with respect to which there is a well-defined and publicly known usage, the presumption is, in the absence of facts indicating a different intent, that such authority was conferred in contemplation of such usage, and persons dealing with such agent in good faith will not be bound by limitations upon such usual authority.

2. But such usage to bind a principal must have existed for such a time, and become so widely and generally known as to warrant the presumption that he had it in view at the time of the appointment of the agent.

3. Rule applied. The M. & W. I. Co., a Wisconsin corporation, owning a cattle ranch in Wyoming, appointed one A. its agent in Wyoming, with limited power, viz., to hire and pay for the necessary help, and pay the current expenses with money remitted on his statement, and to care for and round up the cattle, and ship them, when fit for market, to Chicago, in care of a particular commission house. In an action of replevin by the company aforesaid against J. & R. to recover cattle claimed by the latter to have been purchased from A. on the ranch aforesaid, held error to receive evidence on the part of the defendants to prove that at the time they purchased the cattle from A. it was the custom or usage of managers of cattle companies doing business in Wyoming to sell the cattle from the ranches of such companies, in the absence of any evidence that the plaintiff company had knowledge of such usage.

Error to district court, Merrick county; MARSHALL, Judge.

Replevin by the Milwaukee & Wyoming Investment Company against Addison B. Johnston and John R. Rush to recover certain cattle. Judgment for defendants. Plaintiff brings error. Reversed.J. W. Sparks and Geo. H. Noyes, for plaintiff in error.

John L. Webster and A. Ewing, for defendants in error.

POST, J.

This was an action of replevin commenced by the plaintiff in error, a corporation organized under the laws of the state of Wisconsin, to recover the possession of 250 head of cattle. The plaintiff is organized for the purpose of acquiring land in Wyoming, and raising and selling cattle thereon. Its capital stock is $500,000, and its business is managed by a board of directors. It owns and carries on a ranch, with a large number of cattle, in Wyoming. By its by-laws, all deeds, contracts, and other instruments in writing to which the company may be a party are required to be signed by its president and secretary, which latter officer is to affix the seal thereto. The president is invested with the general care and supervision of the affairs and property of the company. The treasurer's duties are to receive and keep all moneys, contracts, and other property belonging to the company. The by-laws provide that there may be appointed by the board of directors or executive committee a manager and subordinate officers and agents; and, further, that the manager shall reside and keep his office in the territory of Wyoming, and shall have the charge and management, subject to the orders of the directors, of all the affairs and property of the company. He may appoint employes and agents necessary to protect and take care of the property and interests of the company, and fix their salaries, subject to the approval of the board or the executive committee. He is prohibited from contracting any debt or entering into any contract involving an expenditure of more than $500, unless specially authorized by the directors or executive committee. The office of the company is to be in Milwaukee, as well as those of the secretary and treasurer. The testimony on behalf of the plaintiff was, in substance, that George Mitchell, a stockholder, director, and vice president of the company, managed its affairs in Wyoming down to the fall of 1887, when one Chadwick acted in that capacity until the fall of 1888, but neither had authority to sell the cattle, but shipped them, as directed, to the commission house of George Adams & Burke, Chicago, to sell, and remit the proceeds to the treasurer at Milwaukee. At a meeting of the board of directors of the plaintiff, held in Milwaukee, July 7, 1887, the president was instructed to make such changes in the management of the ranch as might in his judgment be necessary for its more economical management, and that, in pursuance of such instructions, in November, 1888, he employed one Thomas R. Adams to perform certain specified duties on the ranch, instructing him to purchase supplies therefor, hire the men, and send in the accounts monthly to the treasurer at Milwaukee, who would remit the money for the payment thereof, to gather the cattle on the round-up, and ship them to George Adams & Burke, Chicago. Adams was given no authority to ship cattle elsewhere, nor was he authorized to sell or dispose of the cattle at any time or in any way or place. He had specific instructions from the officers of the plaintiff company not to sell any cattle from the ranch. These instructions were verbal, given him at the time of his employment, and never modified thereafter. In addition to the above terms of hiring there was no official or corporate action appointing Adams as manager, and no record in the minutes of the company of his employment. He had instructions in writing from the president of the company on or about the 20th of July, 1888, to consign about 300 four year old steers and 400 three year old steers to George Adams & Burke, billing them by the way of Omaha to Chicago, to be sold at one or the other of such places by such commission house. It also appears undisputed by the record that Adams had never sold any cattle prior to the time in question. It also appears to be undisputed that he had never sold anything from the ranch except some old fence wire, and exchanged with a neighboring ranch a part of a cow killed for beef, but such facts were unknown to plaintiff, or any of its officers or directors, prior to the time of the institution of this suit. The testimony on behalf of the defendants shows that in October, 1889, said Adams, through one T. D. Perrine, a cattle salesman of Omaha, negotiated a sale of 250 head of three and four year old steers from the plaintiff's...