N.M.-Colo. Coal & Mining Co. v. Baker

• Decision Date: 23 February 1916
• Docket Number: No. 1822.,1822.
• Citation: 157 P. 167,21 N.M. 531
• Court: New Mexico Supreme Court
• Parties: NEW MEXICO-COLORADO COAL & MINING CO.v.BAKER ET AL.

21 N.M. 531

157 P. 167

NEW MEXICO-COLORADO COAL & MINING CO.

v.BAKER ET AL.

No. 1822.

Supreme Court of New Mexico.

Feb. 23, 1916.On Rehearing, March 14, 1916.

Syllabus by the Court.

The secret or private instructions to an agent, however binding they may be as between the principal and his agent, can have no effect on a third person who deals with the agent in ignorance of the instructions, and in reliance on the apparent authority with which the principal has clothed him.

One exercising the power to rescind his contract without right--that is, declaring to the other party his intention not to abide by it--commits thereby a breach whereon the other may bring an immediate suit, without demanding a performance, which, by the terms of the contract, was to be in the future.

Where a party on a motion for new trial complains of an alleged erroneous decision of the trial court in the admission or exclusion of evidence, he must point out in his motion, specifically and with reasonable certainty, the particular evidence admitted or excluded; otherwise the court below need not, and the Supreme Court will not, review such alleged erroneous decision.

Whenever the evidence adduced presents an issue of fact which, if determined in plaintiff's favor, would entitle him to recover, the case should be submitted to the determination of jury.

A record on appeal must show that it contains a transcript of all that portion of the record of the trial court necessary for consideration of the questions presented for review, and the duty of having such a transcript properly prepared and filed rests upon the appellant, or plaintiff in error.

It is well settled in this jurisdiction that a party who intends to assign error upon an instruction given by the trial court of its own motion, or upon request of the adverse party, must either tender to the court an instruction which correctly states the law, and except to the refusal to give such instruction, or he must, by his exception, call the attention of the trial court specifically to the error in the instruction proposed to be given, in order that the instruction may be corrected and the error avoided.

An objection, made in this court to the action of the trial court in instructing a jury after argument, cannot be entertained where the question was first raised in the motion for a new trial, and no request was made in the trial court that the jury be instructed before argument, and no objection or exception was made or taken to the action of the court in instructing the jury after argument.

Additional Syllabus by Editorial Staff.

The action of the court in giving to the jury instructions with the name of plaintiff's attorney signed thereto is not ground for reversal.

In an action for breach of a contract to sell coal to plaintiff, evidence held insufficient to sustain verdict as to amount for which it was rendered.

Error to District Court, Colfax County; Leib T. D., Judge.

Action by the New Mexico-Colorado Coal & Mining Company against J. R. Baker and another, partners as the Rock Milling & Elevator Company. Judgment for defendants, and plaintiff brings error. Affirmed, upon filing remittitur within 30 days; otherwise, reversed and remanded for new trial.

The complaint in this case alleged that on February 15, 1912, the defendant company, through its agent, entered into a written contract with the plaintiff, agreeing to sell and deliver upon demand of plaintiff, during the year 1912, 225 cars, or 9,000 tons, of coal; that the defendant subsequently approved and ratified the contract, and made a shipment of one carload of coal upon order of the plaintiff, but subsequently, on August 5, 1912, repudiated said contract by a letter addressed to the plaintiff; that during the dates between which the contract was effective, the price of coal advanced in the Northern New Mexico field $1.50 per ton, and that plaintiffs were compelled to buy elsewhere and pay the amount mentioned per ton in excess of the contract price on the entire 9,000 tons of coal specified for delivery under the terms of the alleged contract between the parties, to the plaintiff's damage in the sum of $13,500; that plaintiffs were unable to get a coal of equal quality to that referred to in the contract, and were therefore compelled to furnish their customers with an inferior quality, resulting in a loss of business, and in plaintiff's damage in the sum of $5,000. The defendant company denied all the material allegations of the complaint except that it admitted its corporate existence, and, by way of counterclaim, set up a demand for $197.02 on account of coal sold and delivered to the plaintiffs between November 4, 1911, and April 1, 1912. The plaintiff, by way of answer to the counterclaim of the defendant company, admitted receiving two cars of coal prior to the making of the contract sued upon in this case, but alleged that the coal was not fit for domestic consumption on account of the fact that it contained a large quantity of slate and refuse, which condition was called to the attention of the defendant company, which agreed to adjust the same on an equitable basis at the time the contract was entered into which was the basis of this suit, which adjustment, however, had not been had. The plaintiff further admitted the receipt of another car of coal in March, 1912, which had not been paid for, but which plaintiff offered to credit the defendant with upon the indebtedness due from defendant to the plaintiff. Additional facts are stated in the opinion.

Whenever the evidence adduced presents an issue of fact which, if determined in plaintiff's favor, would entitle him to recover, the case should be submitted to the determination of jury.

J. G. Northcutt, of Trinidad, Colo., and Morrow & Alford, of Raton, for plaintiff in error.

Smith & Smith, of Hutchinson, Kan., and H. L. Bickley, of Raton, for defendants in error.

HANNA, J. (after stating the facts as above).

This court has not had the advantage of a brief by the defendant in error, and will therefore consider the alleged errors presented by the plaintiff in error in the order in which they are referred to in the brief.

[1] The first argued and submitted is based upon an alleged failure of the plaintiff to prove that the alleged agent of the defendant was duly authorized, or had any authority to make the alleged contract sued upon. It is contended that one dealing with an agent must ascertain whether he is an agent, and the extent of his authority; that the agent cannot establish his own authority either by his representations or by assuming to exercise it. There is no cause of quarrel with the general principle thus asserted by plaintiff in error, which finds support in many authorities collected in 31 Cyc. 1322 et seq., but this general principle, like many others, is not without exceptions or qualifications, and the authority of the agent must not be confused with what may amount to a limitation of this authority by reason of secret instructions, which were not communicated to a third party, or the customer, as in this case. This qualification is thus announced in 31 Cyc. 1327:

“The secret or private instructions to an agent, nowever binding they may be as between the principal and his agent, can have no effect on a third person who deals with the agent in ignorance of the instructions, and in reliance on the apparent authority with which the principal has clothed him.”

It is seriously urged by plaintiff in error that there is no evidence at all as to any inquiry by the plaintiff as to Farrand's agency and authority, or that defendant held out to the plaintiffs that Farrand was its agent; that the only evidence upon the subject is that Farrand appeared before the plaintiff, representing himself to be an agent, showing a card so designating him, and having in his possession certain blank forms of contract made out in the name of the defendant company. We have made a careful examination of the record in this respect, and find that the witness Farrand testified that he was employed by the defendant company as general sales agent in charge of the sale of their products; that he made a trip through Kansas in 1912 in the interest of the defendant company, and there became acquainted with Mr. Baker, who was one of the partners in the plaintiff copartnership, and entered into a contract with such plaintiff which he identified as the one executed by himself and Mr. Baker. In further support of the alleged agency, the plaintiff offered in evidence a letter from the Yankee Fuel Company, addressed to the alleged agent, Farrand, offering him employment, which letter was signed by one Horace W. Kruse as general manager of the Yankee Fuel Company, and further offered a letter from the witness Farrand addressed to the same company, accepting the offer of employment. This witness, Mr. Farrand, also testified that at the time of the exchange of correspondence, Mr. Kruse was acting as general manager of the New Mexico-Colorado Coal & Mining Company, the defendant below. Mr. Kruse on the witness stand testified that the New Mexico-Colorado Coal & Mining Company became the selling agent for the Yankee Fuel Company on January 1, 1912, which was before the contract was executed, and that he was general manager of both companies. The offer of employment addressed to Mr. Farrand, and the acceptance, as disclosed by the correspondence referred to, were exchanged before the 1st day of January, and after the arrangement between the two companies. It would appear from the testimony of Farrand that he was paid his salary by the check of the defendant company, and his connection with that company is further referred to by his own testimony, to the effect that he had a certain conversation with the general manager, Mr. Kruse, who spoke to him about selling coal for the defendant company, the New Mexico-Colorado Coal & Mining Company, and that arrangements were made...