Record v. Wagner

• Decision Date: 31 January 1957
• Citation: 100 N.H. 419,128 A.2d 921
• Parties: Donald L. RECORD v. Fred WAGNER.
• Court: New Hampshire Supreme Court

Page 921

128 A.2d 921

100 N.H. 419

Donald L. RECORD v. Fred WAGNER.

Supreme Court of New Hampshire.

Submitted Jan. 2, 1957.

Decided Jan. 31, 1957

Robert A. Jones, Lebanon, for plaintiff, furnished no brief.

Black, Plante & Ellison, White River Junction, Vt., and Cotton, Tesreau & Stebbins, Lebanon, by brief, for defendant.

DUNCAN, Justice.

The record discloses no issue except the issue of the sufficiency of the evidence which was expressly reserved and transferred, and has been briefed by the defendant.

The findings of the Trial Court and the testimony, which in most respects was not conflicting, disclose the following facts. In 1953 and for some years prior, the defendant and two neighbors operated several farms in Lyme 'as a cooperative,' the exact nature of which was not disclosed. The defendant owned two of these farms, and the Court found that he hired David Berry to operate them. In 1953 and for several years previously, Berry and his family occupied the house on the main farm, and some twenty to twenty-five head of cattle were maintained there. The defendant occupied 'the upper farm' for possibly a month or two, in 1953. For the balance of the year it was unoccupied. In 1953 Berry requested the plaintiff to bale the hay 'on the hill,' and he did so. At Berry's direction he made out his bill for $202.50 to the defendant, and gave it to Berry. The bill was paid by the defendant about a month later.

In the summer of 1954, Berry who still lived on the main farm asked the plaintiff if he would 'bale the hay on the hill the same as last year.' The plaintiff agreed, and baled hay on the same fields with one exception, made out his bill for $172.50 to the defendant and delivered it to Berry, who said he would send it to the defendant. In May of 1955 the defendant returned to Lyme, and refused to pay the bill.

The defendant's testimony was that in 1953 Berry was working for the cooperative, and was authorized to cut the hay and have it baled, but after October 1953 'the cooperative no longer operated the farm,' and the defendant then leased his farms to Berry. He retained title to 'an undivided half' of the cows, and made 'a conditional sales contract on half of the cattle' with Berry. Half of the milk check was paid to the defendant 'as rent and applied against the purchase price of various things that he was buying from me.' Berry was authorized to cut the hay in 1954.

The defendant gave no notice to the plaintiff of any new arrangement with Berry, and the plaintiff saw no change in the operation of the farm.

The Court found and ruled that the 'defendant so conducted his farm property as to give the plaintiff the right to believe that Dave Berry was his agent and authorized to hire him to bale the hay in 1954.' Thus it is clear that the defendant's liability as determined by the Trial Court was founded upon the apparent authority of Berry, his former agent. The sole issue is whether the evidence warranted the findings made.

In Atto v. Saunders, 77 N.H. 527, 528-529, 93 A. 1037, 1039, the question of whether a contract was within the 'apparent scope' of authority of an agent was stated to be a question of fact 'not susceptible of an exact or technical definition.' 'In general,' the opinion states, 'it has been defined as follows: 'The apparent scope of an agent's authority is that authority which a reasonably prudent man, induced by the principal's acts and conduct, in the exercise of reasonable diligence and sound discretion, under similar circumstances with the party dealing with the agent, and with like knowledge, would naturally suppose the agent to have." Otherwise stated in Davison v. Parks, 79 N.H 262, 263, 108 A. 288, 289, by apparent scope 'it is intended that the principal has either so conducted his business as to give third parties the right to believe that the act in question is one he has authorized his agent to do, or that it is one agents in that line of business are accustomed to do.' See, also, Edelstone v. Salmon Falls Mfg. Company, 84 N.H. 315, 319, 150 A. 545. As was said in Howison v. Mechanics Sav. Bank, 88 N.H. 31, 40, 183 A. 697, 703: 'It is not a question of authority in fact, but of reliance upon appearances.' These principles control even though an agency has terminated. 'It is a familiar principle of law that * * * the authority of the agent to bind his principal continues, even after an actual revocation, until notice of the revocation is given * * *.' Claflin v. Lenheim, 66 N.Y. 301, 305.

Applying the law to the case before us, it is plain that the conclusion reached...