Moore v. Ziba Bennitt & Co.

Decision Date31 January 1921
Docket Number133
Citation227 S.W. 753,147 Ark. 216
PartiesMOORE v. ZIBA BENNITT & COMPANY
CourtArkansas Supreme Court

Appeal from Jefferson Circuit Court; W. B. Sorrells, Judge affirmed.

Judgment affirmed.

M Danaher and Palmer Danaher, for appellant.

1. Carter Murphy, who signed the contract, was not appellant's agent nor was he authorized to make the agreement for her. There is no testimony that appellant authorized Carter to make this sale nor that she held him out as her agent. The writing was signed by Murphy alone, not as "agent," and there is no testimony that appellant held Murphy out as her agent with her knowledge. The agent only was bound, and not the principal. 2 C. J. 670, par. 321; Ib. 682. The writing was not the contract of the principal and she is not bound. 2 C. J. 679; 17 Ind. 495; 17 Am. Dec. 529; 25 Am. Rep. 199; 52 Am. Dec. 771; 46 Id. 238; 66 Ark. 10; 55 Id. 423. The authority of the agent will not be presumed and can not be proved by mere acts and declarations of the agent; authority must be proved by positive proof or by circumstances showing the assent of the principal. 126 Ark. 405; 105 Id. 446; 132 Id. 155; 105 Id. 450; 2 C. J. 436-8; 53 Ark. 208; 105 Id. 148. There is no evidence of any agency of Murphy, and the former transactions should not have been admitted in the evidence. 105 Ark. 449; 61 N.Y.S. 727; 56 Ark. 221. Authority can not be implied from proof of authority in a particular instance. 2 C. J. 592, 920. Agency can not be established by proof of similar transactions with others in no way connected with the transaction in question. 2 C. J. 948; 4 So. 34. The testimony of A. W. Nunn was inadmissible. 2 C. J. 587-8; 130 N.Y.S. 136. It was not shown that appellant knew of these transactions. 2 C. J. 947. It was error to allow witnesses to testify that Murphy was appellant's agent. The facts alone were admissible. 110 Ark. 90.

2. The contract is void for uncertainty. 159 S.W. 82.

3. The instructions were error as given. The defendant's tenth should have been given. 2 C. J. 564; 62 Ark. 33; 94 Id. 305.

4. There was no ratification. 3 Cyc. 255; 55 Ark. 423; 216 S.W. 20; 19 N.H. 369. Appellant was in no manner responsible for Murphy's lack of information or negligence. 1 Mechem on Agency (2 ed.) 297.

Bridges & Wooldridge and Coleman & Gantt, for appellee.

1. Murphy was appellant's agent, as the testimony proves. To deny his agency would be a fraud on innocent parties and can not be allowed. Mechem on Agency, § 283.

2. One who holds out another as his agent is bound by his acts. Mechem on Agency, §§ 83-4; 41 N.E. 888-91; 53 Ark. 208. One dealing with an agent, in the absence of notice to the contrary, has the right to presume he is a general agent. 103 Ark. 79; 132 Id. 171; 107 Id. 322; 100 Id. 240-4; 112 Id. 68; 219 S.W. 319; 131 Ark. 197. The intention was to bind the principal. 2 C. J. 670, § 322; Ib. 813, § 437; 101 U.S. 392; 1 Williston on Contracts, §§ 287, 295. See, also, 10 N.W. 433-4; 65 N.Y.S. 225.

3. Parol evidence was admissible to show that the principal was bound where the contract is in the name of the agent. 43 P. 378; 117 N.E. 526-7; 60 P. 839; 216 S.W. 20; 142 Id. 1150; 25 R. C. L. 657, 686.

4. Bennett's testimony as to purchases of cotton prior to the one in question was admissible. 21 R. C. L. 858; 96 P. 48; 17 L. R. A. (N. S.) 239. The relation of principal and agent may be shown by circumstances and parol proof. 83 N.E. 773; 94 N.W. 427; 69 Id. 927. Previous dealings are admissible to show notice. 78 Ark. 327; 99 S.E. 490. Where evidence tends to show agency, it is evidence for a jury to pass upon. 21 R. C. L. 820; 111 N.W. 119; 21 R. C. L. 821-2.

5. Although evidence is not full or satisfactory, the better practice is to submit it to a jury. 21 R. C. L. 821-2.

The instructions given cover the case and have been approved by this court, and those refused were sufficiently covered by those given. 134 Ark. 284.

It is the duty of courts to so construe contracts as to uphold them. 13 C. J. 539; 2 Williston on Cont., 1202, § 620. If there is a conflict in the provisions of the contract, the first will prevail and the last be rejected. 34 A. 648-52. Murphy's authority was fairly submitted to a jury on proper instructions, and their decision is final. 93 Ark. 600; Mechem on Agency, § 106. Where there is a ratification as here, it is unnecessary to prove agency. 139 N.W. 101. To repudiate an agency notice must be given. 90 S.W. 737. Ratification was shown. 8 Pick (Mass.) 9; 78 A. 379-81; 93 P. 577. Appellant had knowledge of the acts of the agent and did not object, and hence there was ratification. 80 N.W. 520; 116 N.W. 611. Appellant was silent after the acts of the agent were known and is bound. 11 Ark. 189; 96 Id. 505; 124 Id. 360. Appellant did not disaffirm the contract and is bound. 11 N.E. 700.

WOOD, J. MCCULLOCH, C. J., dissents.

OPINION

WOOD, J.

The appellee, an Arkansas corporation, engaged in the business of buying and selling cotton in the city of Pine Bluff, Arkansas, brought this action against the appellant. The appellee alleged that the appellant for many years had been a planter engaged in the growing and selling of cotton; that Carter Murphy, appellant's son, had been for many years her duly authorized agent through whom she had sold the cotton and cotton seed grown by her; that Carter Murphy sold and agreed to deliver to the appellee the first two hundred bales of cotton picked on appellant's plantation at Fairfield, Arkansas, for the price of 45 1/2 cents per pound; that it was agreed that each of the bales should weigh five hundred pounds and should be delivered to the appellee on board the cars at the compress in Pine Bluff as quickly as possible after the date of the agreement, and that the appellee should pay for the same according to the compress weight; that the cotton was ready for delivery October 29, 1919; that appellant had failed to deliver the same; that appellee had at all times been ready and willing to receive and pay for the cotton according to the contract; that appellee, relying on the contract, had contracted to sell the cotton and would be compelled to buy other cotton of the same grade and staple to comply with its contracts; that the market price of the cotton on the day the same should have been delivered was 75 cents per pound; that the difference between the price at which appellant agreed to sell the cotton and the market price of the cotton at the time when the same should have been delivered was 29 1/2 cents per pound, or a total of $ 29,500, which the appellee had lost by reason of the failure of appellant to comply with her contract. The appellant denied all the allegations of the complaint and set up that the cotton alleged to have been sold exceeded in value the sum of $ 30 and pleaded the statute of frauds. The alleged contract was made an exhibit to the complaint and over the objection of appellant was introduced in evidence as follows:

"Mr. Carter Murphy,

September 25, 1919.

"City:

"Dear Sir: This confirms purchase from you today of 200 bales of Mrs. Moore's staple cotton, as follows:

"100 bales first picked, f. o. b. Pine Bluff Compress, compress weight, 46 cents per pound.

"100 bales second picked, f. o. b. Pine Bluff Compress, compress weight, 45 cents per pound.

"Or the first 200 bales picked at an average price of 45 1/2 cents per pound, f. o. b. Pine Bluff Compress, compress weights, we to take up freight bills.

"To be delivered as quickly as possible.

"Yours truly,

"Ziba Bennitt & Company, Inc.

"By Ziba Bennitt, Pres.

"Above accepted September 25, 1919.

"Carter Murphy."

Ziba Bennitt, the president of the appellee company, testified substantially as follows: That he had been dealing with Murphy with reference to appellant's cotton for about six years; that he had bought cotton from him nearly every season. Murphy generally solicited witness in connection with the selling of the cotton. In the present instance, Murphy told witness that he had some cotton for sale and asked witness what he would pay for it. Witness offered him 46 cents per pound for the first 100 bales picked and ginned and 45 cents for the next 100 bales picked and ginned of the cotton grown on the Fairfield place. In the sales and purchases the matter had never been taken up with appellant but was consummated directly through Murphy. The cotton that Murphy sold to witness under the contract in evidence was grown on appellant's plantation at Fairfield. The checks that were made in payment for the cotton of former sales were made payable to Carter Murphy. In the dealings witness had with Murphy witness knew that it was appellant's cotton that he was buying. Witness supposed that he had made at least eight or ten purchases from Murphy before the one in controversy. For the last of these purchases, a check was issued to Carter Murphy in the sum of $ 35,000. The check was introduced in evidence. This check was endorsed by C. B. Murphy to Merchants and Planters Bank with instructions to credit account of appellant, and the check was paid August 30, 1919. Witness supposed that Murphy was appellant's agent in all these dealings. In the purchase in controversy witness and Murphy agreed on a price that would average 45 1/2 cents per pound. After witness and Murphy had agreed upon the terms of the sale, witness stated that he would confirm the oral contract in writing and asked whether he should address it to Mrs. Moore (appellant) or to Murphy, and Murphy replied to address it to him. Whereupon witness prepared the contract in evidence. There was no difference between this contract and other contracts made with Murphy except as to the price and quantity. The grade and staple of cotton produced on appellant's plantation...

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