Rainey v. Potter

• Decision Date: 08 January 1903
• Docket Number: 47.
• Parties: RAINEY et al. v. POTTER.
• Court: U.S. Court of Appeals — Second Circuit

120 F. 651

RAINEY et al. v. POTTER.

No. 47.

United States Court of Appeals, Second Circuit.

January 8, 1903

Howard Taylor, for plaintiff in error.

John McG. Goodall, for defendant in error.

This cause comes here upon a writ of error to review a judgment of the Circuit Court, Southern District of New York, entered upon the verdict of a jury for $2,616.14 in favor of defendant in error, who was plaintiff below. The plaintiff Potter, was the managing owner and agent of the schooner Jennie French Potter. Defendants, Rainey and Ellicott, were partners in the coal business in Philadelphia and New York. Their New York office was in the Bowling Green Building; the firm name, W. T. Rainey & Co., was on the door, and the office under the control of one Ernest M. Munn, who was their clerk in charge of the general affairs of the firm in New York. Concededly he had authority to charter vessels that were to be used in the firm's business. On May 4, 1900 after a conversation with Munn over the telephone plaintiff's broker called at the New York office of the defendants, found him in charge, and presented to him a proposed contract or memorandum of charter, substantially in these words:

'Messrs W. T. Rainey & Co.: We have this day chartered the Jennie French Potter to go to Newport News for Providence at $.65, Boston and Portsmouth $.75 or Portland at $.80 shipper's option; eight days to load, Sundays and holidays excepted, five cents per ton a day demurrage after this time expires until loaded.'

It was thereupon signed by Munn with his own name, 'E. M. Munn.' He asserts that before doing so he struck out the words 'Messrs, W. T. Rainey & Co.,' wrote in their place the words 'C. J. Wittenberg' and at the same time stated to plaintiff's broker 'those (i.e., Wittenberg) are the people to whom you will apply for the coal, and who will load the vessel when she gets to Norfolk. ' The witnesses for plaintiff insist that he made no such statement, made no change in the document, but simply signed it as above and delivered it to plaintiff's broker, it being supposed by the broker and by plaintiff and Munn signed it as agent for defendants. The schooner was not given a cargo when she got to Newport News. Defendants insisted that they had not chartered her, and after some delay the contemplated voyage was abandoned. The action was to recover demurrage and damages.

The charge to the jury begins with this statement: 'There is not any question in the case but that the defendants had this office here in New York for the transaction of business of this kind, nor but that Mr. Munn was the manager there for them in the transaction of such business, nor but what Mr. Cox represented the plaintiff in going there to make this arrangement; a bargain, and no question about the terms. The question is, with whom did the plaintiff, through Mr. Cox, make that bargain through Mr. Munn acting for somebody? ' This statement of the single issue which was left in the case when the testimony was closed is entirely accurate, and upon that simple question there was a sharp conflict of testimony between the witnesses. The verdict has, of course, determined that issue in favor of the plaintiff.

Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

LACOMBE Circuit Judge (after stating the facts as above).

Upon the close of the case defendants moved to direct a verdict in their favor upon the ground that the testimony showed an instrument made by Munn personally with the plaintiff, and not one purporting to be made by the defendants with the plaintiff. This was denied, and exception reserved. Defendants' counsel also noted an exception to the charge 'so far as it says that Munn must have made known to Cox that he was not acting for defendant,' and asked the court to charge that, 'the contract having been signed by Ernest M. Munn personally, the burden is upon the plaintiff to prove that it was not his personal contract, but that it was in fact the intention of the parties that the contract should be made by somebody else than the person who signed it. ' To this the court responded, 'That is a circumstance; I have left it to the jury'-- and the defendants again excepted.

The passage in the charge which is complained of reads:

'If Munn told Cox that the right name was not in the paper, that Wittenberg was the man, and not Rainey & Co., so that he understood it, then he did not have any bargain with the defendants; but if he did not, and left him to understand that the defendants were the ones, then the verdict should be for the plaintiff.'

Counsel for defendants states that the general question of law presented is 'whether, because the transaction took place on the defendants' premises, Munn's failure to make the owner clearly understand that it was not the defendants' matter made the defendants liable. ' But this statement is incomplete. Munn was not only the agent of the defendants in their office, but he was an agent fully empowered to enter into just such contracts as this for them. No witness, not even Munn himself, suggested that the contract was a personal one, that the minds of the parties ever met on a contract with Munn, or even contemplated such a contract. The document itself proclaimed to every participant in the transaction that the contract was one for a charter by W. T. Rainey & Co. The court correctly charged that if before, or when, he signed it, Munn had struck out the firm's name and notified Cox that it was not to be their contract, they would not be bound. But if he did not do so, if, under the circumstances rehearsed above, the employe of the firm, who, as one of his employers testified, 'had authority to charter vessels for W. T. Rainey & Co.,' face that it was a charter to that firm, the jury were warranted in drawing the conclusion that the contract was entered into by him as agent for the firm under the authority to contract for them which it is conceded he possessed. Indeed, any other conclusion would be so contrary to the evidence (assuming that the jury disbelieved the statement that Munn struck out the firm's name and substituted Wittenberg's) as to justify the court in setting the verdict aside. Therefore the court was correct in charging that if Munn did not tell Cox that the right name was not in the paper, but left him to understand that the defendants were the one, 'the verdict should be for the plaintiff,' for the facts in the case warranted no other inference. Defendants' counsel correctly states the situation presented by the pleadings, viz.: That prima facie the contract signed 'Ernest M. Munn' was Munn's personally, that the question was one of the intent of the parties, and that the 'burden was upon the plaintiff to prove it, if he and Munn intended that the defendants should be bound'; and he might add, the further burden to prove that Munn had authority to bind them. But the difficulty with his present contention is that plaintiff, partly with his own proof, partly with that supplied by defendants, has successfully borne the burden and established his case, it being once conceded, as it must be under the verdict, that there was no substitution of the name Wittenberg, nor any repudiation of the declaration on the fact of the instrument that it was tendered as a contract to W. T. Rainey & Co.

There are 33 assignments of error, all based upon exceptions to evidence admitted. This unusual number is to some extent accounted for in the following excerpts from the brief of defendants' counsel:

'The choice was presented to us of either permitting the case to be conducted in a way that ordinarily, it would seem would not be sanctioned by a trial judge, or of constantly making objections. Having embarked upon the latter course at the outset of the case, we had to continue until the end.'

In consequence, very many of the exceptions are of such a character as not to require any extended discussion.

The first four questions which were objected to asked plaintiff's broker to state (a) whether he had done business with the firm of W. T. Rainey & Co. prior to May 4 1900; (...