Northeastern Nash Automobile Company, Inc. v. Allen Bartlett

• Decision Date: 11 March 1927
• Citation: 136 A. 697,100 Vt. 246
• Parties: NORTHEASTERN NASH AUTOMOBILE COMPANY, INC. v. ALLEN BARTLETT
• Court: Vermont Supreme Court

136 A. 697

100 Vt. 246

NORTHEASTERN NASH AUTOMOBILE COMPANY, INC. v. ALLEN BARTLETT

Supreme Court of Vermont

March 11, 1927

October Term, 1926.

ACTION OF TORT for conversion of an automobile. Plea, general issue. Trial by jury at the June Term, 1925, Caledonia County Willcox, J., presiding. Verdict directed for plaintiff, and judgment thereon. The defendant excepted. The opinion states the case.

Judgment reversed and cause remanded.

James B. Campbell and Shields & Conant for the defendant.

Present WATSON, C. J., POWERS, SLACK and FISH, JJ., and MOULTON Supr. J.

OPINION

SLACK

The action is tort for the conversion of a Dodge touring car. Plaintiff had a verdict and judgment below, and the case is here on defendant's exceptions.

The plaintiff is a corporation organized by John M. Allen for the purpose of selling Nash cars and used cars taken in trade. At the times here material, Allen owned practically all of plaintiff's capital stock, was its president and treasurer, and had general management of its business. For some months prior to the latter part of September, 1924, plaintiff had in its employ one Jewett Laird, who did such repair work on its cars as was required for a stipulated price per hour, and when not so employed sold cars for it on an agreed commission. On September 22, 1924, Laird traded the car in question to defendant in exchange for a Chevrolet car and $ 475. Defendant took immediate possession of the Dodge car, which he has since retained, and Laird received the Chevrolet car and a cashier's check issued by the Citizens Savings Bank & Trust Company, payable to the order of defendant and indorsed in blank by him, for the above amount. On the same day, Laird sold the Chevrolet car and converted the proceeds thereof, and also the proceeds of said check, to his own use.

An important issue in the case until near the end of the trial was whether Laird was in plaintiff's employ at the time of the sale to defendant. The plaintiff claimed that his employment terminated the Wednesday or Thursday preceding such sale, which was on a Monday. This was denied by defendant. Allen, who was called as a witness by plaintiff, was asked on direct examination: "Q. Had Laird got through for you before you missed these cars?"--and, subject to defendant's exception that the witness should not be permitted to characterize a transaction that was for the jury to determine, and that the evidence was irrelevant, incompetent, and immaterial, answered, "Yes, sir." Whether Laird had finished work for plaintiff before the cars were missed was a question for the jury, of course. But it appeared that this depended upon the sole fact of whether he had been notified by Allen that his employment was terminated. Representing the plaintiff as he did, Allen was competent to testify that Laird had been so notified, and could have properly testified when with reference to such notice the cars were missed. Other evidence received in connection with this answer show such to have been the only purpose and scope of the evidence excepted to, and the jury could not have understood otherwise. In the circumstances, error does not appear.

The evidence as to when plaintiff missed the cars with reference to the time when it claimed Laird got through was properly admitted. Whether Laird in fact got through when plaintiff claimed he did, did not affect plaintiff's claim about it. Plaintiff claimed that he got through at a certain time, and was properly allowed to fix the date when it missed the cars with reference to such time.

Subject to defendant's objection that it was a conversation between the principal and agent to which defendant was not a party, Allen was permitted to testify that on the occasion when it was claimed Laird's employment was terminated, he told Laird, in substance, that he was through work, and that under no consideration should he take another car out of the garage; that he (Allen) would sell the Dodge car, which was the car in dispute, himself. Clearly this evidence was admissible as tending to show that Laird's employment had been terminated. See Mechem on Agency (2nd ed.), par. 613 et seq., and same author (3rd ed.), par. 199. When, as here, the agency is created by parol, the agent is a competent witness to prove such agency and its scope. Hendrickson v. Int. Harvester Co. of America, 100 Vt. 161, 135 A. 702. So, too, is the principal. And it logically follows that the termination of the agency may be shown in the same way. Whether the plaintiff had so held Laird out to the world that defendant was not affected by the termination of their relations, without notice thereof, is another question.

On the cross-examination of Allen, it appeared that he had a telephone communication with one Dunn on the morning of the day Laird made the sale to defendant from which he learned that Laird was at Dunn's place in Cabot with a Dodge car that he was trying to sell Dunn, which turned out to be the car in question. On redirect examination, the witness was permitted to testify, subject to exception, that he did not direct Laird to go to Dunn's place on that occasion. This evidence was admissible to meet any claim that might be made from this circumstance that Laird was then in plaintiff's employ.

On redirect examination, Allen was permitted to testify, subject to defendant's objection that the evidence was incompetent, immaterial, and irrelevant, and concerned an arrangement between the principal and agent of which defendant had no knowledge, that neither Laird nor any other person connected with the plaintiff was authorized to accept payment for cars by checks payable to themselves. This evidence was inadmissible. The fact that Laird was not authorized to accept checks in payment for cars had no tendency to show that he had been instructed not to do so. Having been intrusted with the possession of the car with authority to sell it, authority to receive payment therefor would be implied. Brown v. Aitken, 90 Vt. 569, 99 A. 265. And whether he received payment in money or through the medium of a cashier's check, which is universally recognized as equivalent to money, was immaterial.

Subject to like objection, the witness was permitted to testify further, that the sale of all cars was to be approved by him before delivery, and that all such sales were to be made by written contract. If Laird's agency was general in character, this evidence was incompetent unless it appeared that defendant had knowledge of such limitations, which is not claimed. Wilder v. Hinckley Fibre Co., 97 Vt. 45, 122 A. 428. To same effect are, Lobdell v. Baker, 42 Mass. 193, 35 Am. Dec. 358; Higman v. Camody, 112 Ala. 267, 20 So. 480, 57 Am. St. Rep. 33; and Crain v. Jacksonville First Nat. Bank, 114 Ill. 516, 2 N.E. 486. And this is true, though Laird failed to disclose his principal. Brooks v. Shaw, 197 Mass. 376, 84 N.E. 110; Hubbard v. Ten Brook, 124 Pa. 291, 16 A. 817, 2 L.R.A. 823, 10 Am. St. Rep. 585. See, also, McCracken v. Hamburger, 139 Pa. 326, 20 A. 1051; Ernst v. Harrison, 86 N.Y.S. 247; Napa Valley Wine Co. v. Casanova, 140 Wis. 289, 122 N.W. 812. Otherwise, in every case of undisclosed principal, the secret limitation of authority would prevail and defeat the action of the person dealing with the agent, and later discovering that he was an agent and had a principal. On the other hand, if Laird's agency was special and limited in character, this evidence was admissible under the rule that whoever deals with such an agent is bound at his peril to know the extent of his authority. Cleveland v. Pearl, 63 Vt. 127, 21 A. 261, 25 Am. St. Rep. 748; White v. Langdon, 30 Vt. 599; Sprague v. Train, 34 Vt. 150. Since it cannot be held as a matter of law, on the evidence, that Laird's agency was general in character, this evidence was properly received. The use to be made of it was a matter for the court to deal with in its instructions to the jury.

We do not pause to consider the exceptions that relate to the alleged misconduct of plaintiff's counsel in referring to the car in question as having been stolen, or stolen by Laird, since, in the circumstances, it is not apparent how defendant could have been harmed thereby. This, however, is not to be taken as an intimation that such reference was by any means proper.

During the time that Laird was in plaintiff's employ, one Deering was also employed by plaintiff. In the course of Laird's testimony he characterized Deering as manager. This was excluded, subject to defendant's exception. Defendant also excepted to the refusal of the court to permit Laird to tell what position Deering held with the plaintiff. This was not error, since Laird was permitted to testify as fully as appears to have been desired concerning Deering's authority and duties. This was as far as he was entitled to go.

During the cross-examination of Laird, who was called as a witness by defendant, plaintiff offered in evidence its Exhibit 2, the material part of which reads as follows:

CONTRACT

St. Johnsbury, Vt., Sept. 22, 1924.

Between

Northeastern Nash Co.

FIRST PARTY

AND

Allen H. Bartlett

SECOND PARTY

PHONE

ADDRESS

Danville, Vt.

First party guarantees its new cars as per printed guarantee on back of this sheet. The back of this sheet is a part of this contract. Second party hereby orders from the first party the articles enumerated below at the prices and terms given. It is agreed that if the articles herein ordered are not taken the deposit will be forfeited to First Party. The credit of $$ is allowed solely in consideration of, and on account of price of car ordered herein. Should this order be cancelled, then this credit will be void, but the First Party shall have the right at all times to sell the articles for...