Nicklase v. Griffith

• Decision Date: 28 April 1894
• Parties: NICKLASE v. GRIFFITH et al.
• Court: Arkansas Supreme Court

26 S.W. 381

NICKLASE v. GRIFFITH et al.

Supreme Court of Arkansas.

April 28, 1894.

Appeal from circuit court, Randolph county; John B. McCaleb, Judge.

Action by Griffith & Brown against R. Nicklase for money expended. Judgment for plaintiffs. Defendant appeals. Reversed.

The following are the instructions referred to in the opinion:

The court, at the instance of the plaintiffs, instructed the jury as follows, viz.: "(1) You are instructed that if you find from the evidence that the defendant, by herself or agent, contracted with the plaintiffs in the manner and form set out in their complaint, that, in pursuance of such agreement, the plaintiffs purchased and paid for cotton for defendant with their own money, and that the amount so expended has not been paid to the plaintiffs, or either of them, then you will find for the plaintiffs in the amount so expended, together with six per cent. interest from the date it was due. (2) If you find from the evidence that one Levi Hecht was general agent for the defendant for the transaction of her general business, that this fact was generally known, and was known to the plaintiffs, then any contract made by the said Hecht (if within the scope of the defendant's general business) with the plaintiffs will bind the defendant. (3) The jury are instructed that if they believe from a preponderance of the evidence that the plaintiffs purchased cotton under a contract with one Levi Hecht, in which the said Hecht represented that he was acting for defendant in employing them, and that the defendant afterwards appropriated the proceeds of said transaction to her own use, with a knowledge of the contract between said Hecht and the plaintiffs, that this would constitute a ratification of the contract on her part. (4) The jury are instructed that if they find from the evidence that the plaintiffs were to purchase cotton for the defendant, to be delivered at the gin of the plaintiffs, and such cotton was delivered at the point designated, it would from that time be the property of the defendant; and if purchased with the money of the defendant, by her request or the request of her authorized agent, plaintiffs would then be entitled to recover the amount of money so paid out for the benefit of defendant, with interest at six per cent. per annum from the time it appears that such money was due." To which the defendant saved separate exceptions. The defendant then asked the following instructions: "(1) The jury are instructed that the authority of an agent to bind his principal in matters outside the scope of his authority is not established by proof that the agent has frequently so acted, unless it be proved or circumstances justify the inference that the person to be charged as principal assented to such acts. (2) The jury are instructed that if they find from the evidence that the plaintiff, W. J. Brown, made a settlement with the defendant, and executed his note for any balance that might have been found due, he cannot recover in this action. (3) The jury are further instructed that, in considering of their verdict, they can take into consideration all the facts, circumstances, and conversations between the plaintiffs and the defendant, and also as to whether they made any demand on the defendant for any balance that they might claim to be due them. (4) The jury are instructed that the defendant is not precluded from disapproving any act of her agent in which he exceeds his authority, and that, if the defendant accepted cotton which she believed was purchased by her own agent, and paid for with her own money, that will not estop her, unless it be shown that she received the benefits of the said agent's money or labor, and then she would only be estopped to the extent of the value of the property she received. (5) The jury are further instructed that if the plaintiffs purchased cotton for the defendant, and it was destroyed while in their possession, they cannot recover the purchase money in this action, unless they show that the cotton was destroyed without their fault." The court gave the first and third instructions asked on the part of the defendant, and refused to give the fourth, fifth, sixth, and seventh instructions. The defendant saved exceptions. The court also gave instruction No. 2 asked on the part of the defendant, modified as follows: "The jury are instructed that if they find from the evidence that the plaintiff, Brown, made a settlement with the defendant, and executed his note for any balance that may have been found due, he cannot recover in this action, but, if you believe that said settlement was procured by fraud on the part of the defendant or her authorized agent, the said settlement would not bind the plaintiff." To which exceptions were saved.

Appellees claim that they were employed by appellant to buy cotton for her at their gin. They sue for $415, which, they say, was advanced for her upon their contract with appellant. Appellant denies that appellees were her agents to buy cotton; says she loaned appellees about $550, and they agreed to sell her lint cotton. She says that in November, 1887, the ginhouse of appellees was burned, and thereupon they delivered to appellant two bales of cotton, and made a settlement with her for balance of money loaned; that said settlement showed a balance due her of $255, and that one of the partners (Brown) executed his note for one-half the amount due, and that this settlement was after the purchase of the cotton and the burning of the gin. Hecht, the agent, died June, 1890. Suit was brought September following. This appeal is from a verdict and judgment in favor of appellees.

J. C. Hawthorne, for appellant. G. B. Oliver, for appellees.

WOOD, J. (after stating the facts).

1. Did the court err in permitting appellees to testify "as to conversations and transactions had with Hecht, and also as to statements made by him as to his authority as agent"? "An agent cannot establish his own authority," nor show the extent of it, either by assuming to exercise it or by his own representations. Mechem, Ag. § 276. When agency is proven aliunde, the words and acts of the agent in the line of his employment are admissible in evidence, whether the agent be dead or alive. Hecht was not a party to the record, nor does he come within the terms of section 2 of the schedule to the constitution of 1874. McRae v. Holcomb, 46 Ark. 306. Appellant was engaged in the business of buying and shipping cotton. Her business had been managed by her brother, one Hecht, who, witnesses testify, was the "general agent and manager" of her business. The answer admits that he was agent. Appellees were employed by Hecht to buy seed cotton at their gin. They claim that Hecht left with them $300 to buy cotton, and instructed them to use their own money when that gave out, and he would repay them. Under this contract, they say, was advanced the money for which they sue. The agency of Hecht being established, the...