Rail v. City Nat. Bank
| Decision Date | 28 June 1893 |
| Citation | 22 S.W. 865 |
| Parties | RAIL v. CITY NAT. BANK OF FT. WORTH. |
| Court | Texas Court of Appeals |
Appeal from district court, Tarrant county; R. E. Beckham, Judge.
Action by W. L. Rail against the City National Bank of Ft. Worth. From a judgment for defendant, plaintiff appeals. Affirmed.
Stanley, Spoonts & Meek, for appellant. S. P. Greene and J. Y. Hogsett, for appellee.
Appellant and one Joe Cain, by a contract in writing, undertook to erect for appellee a stone and brick building in the city of Ft. Worth for the sum of $19,000, and to secure the performance of this contract on their part entered into a bond with sureties. During the progress of the work Cain died. Appellant claims that soon thereafter a verbal contract was entered into between him and the bank, by which he was released from his written obligation for the performance of the entire contract, but that he was only to complete the stone and brick work, and receive therefor the sum of $7,300. This is the contract declared upon in this suit. In the petition appellant alleged that this new verbal contract was made with appellee, through its authorized agent. This issue was met with a denial on the part of appellee, both as to the existence of the new contract and the authority to make it. The evidence was conflicting as to whether any such subsequent contract ever was entered into, and there was little or no evidence that the person who appellant claims represented the bank in making the contract, to wit, John Nichols, vice president and director at the time, had any authority to make such a contract. The court submitted to the jury as grounds of recovery (1) whether any such contract was made with an authorized agent of appellee as alleged, and, if not, (2) whether appellee had afterwards ratified any such contract. Upon these issues the jury returned a verdict in favor of appellee; hence this appeal.
Appellant complains, by different assignments of error, that the court should have charged the jury that, if the bank held out Nichols as having authority, it would be liable for his contract, though in fact he was not authorized to make it. No such state of case was set up in his pleadings. To bind the principal for an unauthorized act of the agent he must not only hold him out, but the apparent authority must be relied on in good faith, and in the exercise of reasonable prudence, by the party invoking the conclusive presumption of authority. Mechem, Ag. §§ 83,...
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