Pine Bluff Heading Company v. Bock

• Citation: 259 S.W. 408,163 Ark. 237
• Decision Date: 17 March 1924
• Docket Number: 243
• Parties: PINE BLUFF HEADING COMPANY v. BOCK
• Court: Arkansas Supreme Court

259 S.W. 408

163 Ark. 237

PINE BLUFF HEADING COMPANY v. BOCK

No. 243

Supreme Court of Arkansas

March 17, 1924

Appeal from Monroe Circuit Court; George W. Clark, Judge; reversed.

Judgment reversed, and cause remanded.

C F. Greenlee and E. L. Westbrooke, for appellants.

1. Appellant's motion for a directed verdict should have been sustained, because the allegations of the complaint were in no sense sustained by the plaintiff's evidence, and there was nothing to go to the jury. 147 Ark. 206; 150 Ark 423; 103 S.W. 24, 25.

2. Plyler was appellant's agent to inspect, take up and pay for timber. He had no authority to employ men to buy timber and no such authority was provided. 2 C. J. 573; 140 Ark. 313; 132 Ark. 155; 92 Ark. 315; 94 Ark. 301.

3. Appellant was entitled to an instruction to the effect that funds advanced by one employed as a buyer are advanced at his peril, unless he is specifically authorized to advance such funds, or the employer ratifies his act or accepts the property purchased with the funds so advanced. 60 Ark. 97.

4. Bock, under his own evidence, speculated on his employer. 2 C. J. 692.

Lee & Moore and W. A. Leach, for appellee.

1. On appeal, the pleading will be considered as amended to conform to the proof. 67 Ark. 426; 149 Ark. 658; 98 Ark. 529; 149 Ark. 257; 98 Ark. 312; 97 Ark. 576; 106 Ark. 379.

2. The testimony of Plyler was competent and legally sufficient to establish, not only the fact of his agency, but also the extent of his authority. 31 Cyc. 1651-1652; 159 Ark. 445; 122 Ark. 357; 80 Ark. 228; 55 Ark. 627.

3. The failure of Appellee to inquire as to Plyler's authority would not preclude him from showing that Plyler did have such authority, nor prevent his recovery. 105 Ark. 511.

4. Appellant's requested instruction with reference to funds advanced by one employed as a buyer did not correctly declare the law. If appellee was employed by the appellant to buy heading for its account, this carried with it the authority to pay for the heading out of his own funds, even though he had not been directly authorized to make such advances. 31 Cyc. 1349; 60 Ark. 97.

OPINION

SMITH, J.

Appellee, the plaintiff below, lives at Roe, Arkansas, and in 1920 was engaged in operating a gin and sawmill at that place. Appellant, a corporation, hereinafter referred to as the company, is engaged in the manufacture of heading, with its principal place of business in Pine Bluff, and with a branch plant at Brinkley, which is operated under the name of the Brinkley Heading Company.

It is the contention of appellee that in August, 1920, the appellant, through its agent, Joe Plyler, entered into a verbal contract with him whereby he was to purchase for the company certain heading bolts, to be by him loaded on cars at Roe, and that he was to have for this service $ 2 per cord. According to appellee, a maximum price of $ 24 per cord for white oak and $ 17 per cord for red oak was fixed, and his commission was to be earned by buying at less than those prices, and was estimated at $ 2 per cord. He was to buy on his own inspection, subject to the company's right of reinspection, and was to sustain the loss of any bolts which were culled or thrown out through failure to meet the requirements of the company, and out of his commission he was also to pay the expense incurred in loading the bolts on cars for shipment.

Appellee alleged that, pursuant to this contract, he purchased bolts which met the specifications of those he was authorized to buy, and paid for them with his own money, but appellant refused to inspect them or to receive a shipment of them when tendered, whereby the bolts spoiled. Appellee sued for his commissions and his advances.

Appellant denied all the allegations of the complaint, but, upon a trial before a jury, there was a verdict in appellee's favor, and from the judgment pronounced thereon is this appeal.

It is appellee's insistence that Plyler had authority to employ him, and did employ him, to buy bolts for the company on the terms stated, but that, if this employment was not originally authorized, it was subsequently ratified and became a binding contract, and that, under this contract, appellee is entitled to recover his commission and advances.

The court submitted to the jury the question of Plyler's authority to employ appellee as an agent of the company, and directed the jury to find for the company, unless Plyler's authority to employ appellee was shown. We therefore assume that the jury accepted as true the testimony, which tended to show that Plyler possessed the authority to employ appellee; but the legal sufficiency of the testimony to support that finding is a question of law for our decision.

Of course, it was competent for Plyler to testify as to his own agency and the extent of the authority with which he was clothed. Arkmo Lbr. Co. v. Cantrell, 159 Ark. 445, 252 S.W. 901; Concordia Fire Ins. Co. v. Mitchell, 122 Ark. 357, 183 S.W. 770.

The only testimony tending to show that Plyler possessed the authority to employ appellee is that of Plyler himself, as the managing officer of the company who employed Plyler, and to whom Plyler made reports of his actions as agent, and to whom he went for instructions, testified categorically that Plyler was authorized only to inspect and pay for bolts, and that he knew nothing of the alleged employment of appellee as the company's agent until after the bolts had been purchased and the company's plant had closed down because of the slack demand for staves, and that this information was conveyed to him by appellee himself, who applied to him to take the bolts off his hands, and that he was asked to take these bolts, not as appellee's principal, but as a purchaser from him.

Plyler's testimony was to the following effect: He had been employed by the company for about four or five months, and he was paid a wage of $ 5.50 per day when engaged in the discharge of his duties. On his direct examination as a witness for appellee he was asked: "Q. What business were you engaged in in 1920?" and he answered: "A. Taking up timber for the Brinkley Heading Company." He was asked, "Q. What were your duties in your employment?" and he answered, "I was supposed to go out and buy all the timber I could get, logs and bolts." On his direct examination he gave no other testimony tending to show his authority to employ other agents, although he did testify that he employed appellee to buy bolts. On his cross-examination Plyler gave the following testimony: "Q. What was your line of duty? A. To go out and buy all the bolts I could get, bolts and logs. Q. He (Mr. Rounder, the manager) just told you to go ahead and buy everywhere? A. Yes sir. Q. Don't you know it is a fact, Mr. Plyler, in the first place, that he only authorized you to go out and take up the stuff and pay for it where it was on the road, and he would send you to a particular place, isn't that a fact? A. No sir." The witness was then asked about a communication to the company which he had signed, in which it was recited that he had never at any time employed appellee to work for the company, and that he had no authority to do so. The witness admitted signing this statement, and said it was the truth, but he made explanations of this statement, more or less equivocal, and, when asked to open up and explain it, he answered as follows: "A. All right. When I went out down there Mr. Rounder gave me orders to buy this stuff, and I didn't go into any written contract with Mr. Bock, as I told you before, but I did buy the stuff on a verbal contract, told him to put it out. I went to him, and he said no, his brother was buying bolts there, and he wouldn't buy bolts against his brother. Well, I went to his brother, Mr. Ed Bock, and the two of us went to him and talked it over with him, and he said it was all right, go ahead and go to work, and he went to work and bought the stuff, had it put out. I don't know in what way he bought it; that is all I know about it." He was further interrogated in regard to this statement as follows: "Q. That is your explanation, is it? A. Yes sir. Q. That is the explanation of why you say now that you employed him, and at the time you signed this contract, which you say is the truth, that you didn't employ him, that is the explanation you give to the jury, is it? A. Yes sir. Q. That is the best you can do? A. Yes sir. Q. That is the explanation of why you say now to go out and act as agent of the Brinkley Heading Company? A. I didn't hire Mr. Bock, as I told you, I simply went there and got him to buy bolts. Q. Wasn't that employing him? A. He was to get out these bolts and load them on the car at so much a cord. Q. What else did you have to do besides going out any employing people to get out bolts at so much a cord and the Brinkley Heading Company paying for them? A. That is what I was hired to do. Q. Why did you say here that you had no authority to do that, unless you had done that by contract? A. Well, I did contract with Mr. Rounder to do these things. Q. What kind of a contract? A. Verbal contract; he hired me to go out and do this. Q. Didn't he employ you to go out and take up stuff on the road and pay for it? A. And buy stuff. Q. Buy stuff that he would send you out to buy? A. No sir, when I bought Mr. Bock's logs he didn't know there was a log at Roe." Witness then stated the terms of his contract with appellee, and that he reported what he had done to Mr. Rounder, who approved what he had done. Witness was...