Parchen v. Peck

• Decision Date: 31 January 1877
• Citation: 2 Mont. 567
• Parties: PARCHEN, respondent, v. PECK, appellant.
• Court: Montana Supreme Court

2 Mont. 567

PARCHEN, respondent,

v.PECK, appellant.

Supreme Court of the Territory of Montana.

January Term, 1877.

Appeal from Third District, Lewis and Clarke County.

THIS action was tried by WADE, J., with a jury. The following instructions are referred to in the opinion, and were given on behalf of the plaintiffs and respondents.

2. The first question which, by the pleadings in the case, we are to consider is, as to the character of the North-west Transportation Company, the plaintiffs alleging it to be a copartnership, and defendants averring it to be an incorporation. Ordinarily where two or more men jointly engage in such business as the transportation of merchandise on their joint accounts for a reward, the persons will be held liable for any breach of contract or damages for carelessness in their individual capacity, and as partners, and if this defendant and others so engaged he is liable on his contract unless he shows he has the shield of a corporation.

3. The secure transportation of goods without loss to the shipper, being the ordinary business of transportation companies and within their legitimate pretensions, and this company having in its advertisements made its superior facilities for insurance a method of securing patrons, if its general agent undertook, as part of the contract of transportation, to secure or place insurance for defendants on goods transported over its line, this would bind the company.

4. If you should find this company was a firm, company or corporation, and Peck was one of its members, it need make no difference with you that Coulson or others were also members, if Peck and Durfee were.

5. If the defendants, as alleged, undertook to inform the insurance agents with whom their goods were sought to be insured on the boats on which they were shipped from Sioux City, and this was part of the contract of transportation, and they misinformed such insurance agents so that the insurance was misplaced, and this occurred through the carelessness or neglect of defendants, and the goods were lost, and the insurance, by such misinformation, carelessness or neglect, was lost to plaintiffs, then they would be entitled to recover.

9. A general agent has authority to make any contract within the scope of the business for the doing of which his principal advertises him as general agent, and cannot repudiate liability thereon in any way but by showing such authority had been withdrawn by the principal.

10. Authority of an agent is express or implied. And a general agent has authority in all cases of dealing with third persons ignorant of his actual instructions, to bind his principal to all acts customary, convenient and necessary for the carrying out the business of the agency.

13. Whenever a general agent, acting within and about the business of his principal intrusted to him, transcends the actual authority conferred, the principal must abide by the act of his agent. His only remedy is against the agent for having transcended his instructions. His remedy is not by repudiating the acts of his general agent.

The following instructions were modified by the court and given on behalf of appellants, and are referred to in the opinion.

2. If the jury find from the evidence that the averment of the making of such contract is alone supported by the evidence of W. S. Paynter, one of the plaintiffs, and that such averment is disproved by the evidence of Sam. De Bow, and they give equal weight and credit to the evidence of the plaintiff Paynter and the said De Bow, then the jury should find for defendant.

3. The jury in examining and giving weight and credit to the evidence of the said De Bow. and the said Paynter, should consider the interests of the parties (that the said Paynter has a direct interest in the result of this said suit, and that the said De Bow testified that he has no interest in said action, which evidence is uncontradicted).

The above clause in the parenthesis was struck out by the court.

4. If the said Sam. De Bow was acting as the agent of said North-west Transportation Company, and no power had been given him to make contracts of insurance, then said company would not be bound by, or held liable upon any contracts to insure made by the said De Bow.

5. Upon this power of said De Bow to insure, if the jury should find from the evidence that there is no evidence tending to show that such power had been conferred upon him, but, on the other hand, it is proven by the evidence of said De Bow, Peck, Durfee and others that no such power was given, then the jury must find for the defendant.

CHUMASERO & CHADWICK, for appellant.

Respondents did not prove their allegation that Durfee and Peck were partners. They proved that Durfee, Peck and T. B. Coulson composed the firm. This action is against Peck alone. When a suit is brought by or against partners, all of them must be joined in the suit. Barbour on Parties, 523, § 17; Civ. Pr. Act, § 14.

The certificate of incorporation of appellants should have been read in evidence. It was sufficiently certified.

The instructions were erroneous, argumentative and calculated to mislead the jury.

SANDERS & CULLEN, for respondent.

Peck waived defect or misjoinder of parties by not pleading the same. Civ. Pr. Act, § 55. The answer does not plead that Coulson was a partner.

The record of the incorporation of appellants was not properly authenticated. There was no proof that there was any organization under it. U. S. Rev. Sts., § 906. Appellants' objections, based upon insufficiency of the evidence, cannot be considered. The record nowhere says it contains all the evidence.

The instructions were correct and fair.

KNOWLES, J.

The respondents brought this action against the appellant for damages in failing to insure certain goods, which were lost on a steamboat, the Ida Reece, No. 2. The main issue is this: Did the appellant contract with the respondents to insure their goods? The jury found that he did. We cannot review this matter because a part of the evidence before the jury is not presented in the record--the advertisement of the North-west Transportation Company in the Helena Herald, and some letters. There is some evidence in the record tending to establish the contract, and it is well settled that an appellate court will not review the verdict of a jury under these circumstances.

The evidence shows that the North-west Transportation Company was a firm which was organized in 1871, and composed of the appellant, Durfee and Coulson. Durfee has since died. It is claimed that the court erred in proceeding against Peck, and that Coulson should have been joined with him. The respondents allege that Durfee and Peck composed the firm known as the North-west Transportation Company, that Durfee had died and Peck was the survivor. This was denied, but the appellant did not set forth in his answer that Coulson was a member of the firm, or that there was a non-joinder of parties. Can judgment be entered against Peck under the issues? If a defect or misjoinder of parties appears upon the face of the complaint, the defendant should demur. Civ. Pr. Act, § 50. If it does not so appear, the objection should be taken by the answer. Civ. Pr. Act, § 54. If the objection is not taken by demurrer or answer, “the defendant shall...