Oberne v. Burke

• Decision Date: 21 October 1890
• Citation: 46 N.W. 838,30 Neb. 581
• Parties: OBERNE ET AL. v. BURKE ET AL.
• Court: Nebraska Supreme Court

30 Neb. 581

46 N.W. 838

OBERNE ET AL.

v.BURKE ET AL.

Supreme Court of Nebraska.

Oct. 21, 1890.

Syllabus by the Court.

1. A principal is bound equally by the authority which he actually gives, and by that which, by his own act, he appears to give. Webster v. Wray, 17 Neb. 579, 24 N. W. Rep. 207.

2. The apparent authority of an agent which will bind a principal is such authority which an agent appears to have by reason of the actual authority which he has, or which he exercises with the knowledge and ratification of the principal.

3. An authority to an agent to buy and ship specified commodities, and to make cash advances on the same to be delivered, held not to be authority, nor to give semblance of authority, to guaranty in the name of the principal an obligation of K., as purchaser, to pay B. & Co., vendors, for cattle sold on 30 days' time.

Error to district court, Douglas county; HOPEWELL, Judge.

Montgomery & Jeffrey, for plaintiffs in error.

Hall, McCulloch & English, for defendants in error.

COBB, C. J.

This action was brought by the plaintiffs, in the court below, for the recovery of $791.28, with interest, due from the defendants upon an alleged written guaranty as follows: “South Omaha, Neb., Apr. 26, 1887. M. Burke & Sons, U. S. Yds. Neb.--Dear Sirs: We hereby guaranty the payment by R. Kunath in thirty (30) days the sum of seven hundred ninety-one and 28/100 dollars for 17 head of cattle. OBERNE, HOSICK & CO. Pr. HARMON.” The answer of the defendants was a general denial. There was a trial to a jury with verdict for the plaintiffs for $863.87 damages. The defendants' motion for a new trial was overruled, and judgment entered on the verdict. The plaintiffs in error bring the cause for review on the following errors: (1) The court erred in admitting in evidence the Exhibit A in bill of exceptions, the guaranty sued upon. (2) In admitting the testmony of F. W. Gasman, objected to. (3) In admitting in evidence the Exhibit B, in bill of exceptions. (4) In admitting the testimony of George Burke, objected to (5) In admitting the testimony of Robert Kunath, objected to. (6) In admitting the testimony of William W. Keysor, objected to. (7) In overruling the defendants' motion for nonsuit. (8) In sustaining the plaintiffs' objections to questions proposed by defendants, and stated in bill of exceptions. (9) In sustaining the plaintiffs' objections to evidence proffered by defendant, and stated in bill of exceptions. (10) In sustaining objections to defendants' questions, stated on pages 71 and 72 of bill of exceptions. (11) In giving instruction to the jury No. 4 of the court's own motion. (12) In refusing to give No. 1 asked by defendant. (13) In refusing to give No. 2 asked by defendant. (14) In refusing to give No. 3 asked by defendant. (15) The verdict is not sustained by sufficient evidence. (16) In overruling the motion for new trial. It appears by the bill of exceptions that, for a period of 10 years prior to the date of the written guaranty sued upon, the plaintiffs in error were dealers in hides, wool, tallow, grease, furs, and pelts, in Chicago, their place of residence, with various branches in other localities in the charge of agents and clerks for the sole purpose of purchasing and shipping to Chicago those commodities. Their Omaha branch was conducted by F. S. Bush, assisted by J. S. Harmon, as traveling purchaser. It was testified to at the trial that, in some instances, Bush had loaned sums of money to butchers to aid them in purchasing cattle to be slaughtered, the hides and tallow to be taken by Bush on account of the business he was in charge of; that on other occasions verbal assent by telephone at the office in Omaha, from Bush, had been given to defendants in error for the security of sums, on short credit, for the purchase of cattle by third persons, and that in three or four instances Bush had paid the amount when the purchaser had failed to do so. It was also in evidence that on September 29, 1886, he had given a written order, in the name of his principal, for the delivery to one Hickstein of 21 head of cattle, which had been weighed to one McCorney and not taken. The cattle were delivered on the order, and paid for by Bush, while the principal was unknown to the transaction. Subsequently, in April, 1887, Bush being absent during the month, Harmon gave the written guaranty upon which this suit was brought. There is no evidence tending to show that the plaintiffs in error had knowledge of or acquiesced in any of the transactions mentioned, or that they authorized either agent, in any manner, to assume the debts, or assure the credit, or to give a guaranty for third parties in their name, or on account of their business. H. M. Hosick, of the firm of Oberne, Hosick & Co., testified that the authority of their agents was confined to the buying and shipping of articles in their line of trade, and that they never had authorized J. S. Harmon to guaranty any note or notes to M. Burke & Sons, or to any other persons, at Omaha, or elsewhere. F. S Bush testified that he was, and had been, the business manager of the firm, at Omaha, for 10 years; that J. S. Harmon is employed as traveling agent for the firm, and resides in Omaha, when not out on the road; that he and all other agents for the firm, traveling out from Omaha, were under the supervision and direction of the witness, and took their orders from him; that he was absent from Omaha in April, 1887, and left Harmon in charge of the firm's business there. The witness was asked: “Question. What directions and instructions were given Harmon when you left Omaha to go away at that time? (Which was objected to as incompetent, immaterial, and irrelevant, and the objection was sustained by the court, and exceptions taken to this ruling.) Q. Had you written instructions from the firm at this time limiting your authority? Answer. No. Q. Was it any part of the business of the firm, at Omaha, to go security for anybody who was doing business with them? (Objection was made as incompetent, and as asking for a legal conclusion of the witness, and objection sustained by the court, to which exception was taken.) Q. You did at times assist persons in the purchase of cattle when they bought of Burke & Sons, and others? A. Yes. Q. In certain instances where they telephoned, you agreed they should draw on you for the amount of the purchase of cattle? A. Yes. Q. And also in one or two instances you agreed to pay, if the purchaser did not pay at a certain time? A. Yes. Q. State whether or not the firm had knowledge of your having done these things. (Objected to as irrelevant, and objection sustained.) The plaintiffs in error offered to prove by the witness, in his reply to his question, that he had verbally, in the name of the firm, guarantied the indebtedness of other parties; that he did so upon his own resonsibility, and without the knowledge or authority of the firm, and that he was not authorized by them to go security for any one in the course of the business he was conducting for them; and offered to prove these facts by the last question, and by those which were to follow. (Objected to as incompetent, and for the reason that the witness has shown that he is the general managing agent for all the business of the firm in Omaha, and that he carried it on at times by advancing money and guarantying payments. The objection was sustained.) Q. What authority, if any, did you ever receive from the firm to guaranty the payment of third persons' indebtedness? Q. Did the business of the firm where you represented it as agent, include the guarantying of sales, or the signing of such guaranties as that in this action, or going security for third persons in any way whatever? Q. Did the firm know that you had at any time, or in any instance, agreed, in their name, to become security for a third person, either by guaranty, such as in this action, or otherwise? Q. What knowledge, if any, did the firm have of your ever having agreed to become security for the purchases of a third person, or of your having agreed to guaranty the payment of the purchases or indebtedness of any third person? Q. What greater authority, if any, did you have from the firm than that for the purchase of the articles of their trade? Q. How far did your authority extend, and what were you employed to do for the firm here in Omaha? State fully. (Objections were made and sustained to all the foregoing questions, and exceptions taken to the ruling of the court.) Q. When did you first learn that this alleged guaranty had...