Shafer v. Russell

• Decision Date: 11 February 1905
• Docket Number: 1594
• Citation: 28 Utah 444,79 P. 559
• Court: Utah Supreme Court
• Parties: MARY A. SHAFER, Appellant, v. GEORGE RUSSELL, Respondent

79 P. 559

28 Utah 444

MARY A. SHAFER, Appellant, v. GEORGE RUSSELL, Respondent

No. 1594

Supreme Court of Utah

February 11, 1905

Appeal from the Third District Court, Salt Lake County.--Hon. T. D Lewis, Judge

Action by Mary Shafer against George Russell. From a judgment in favor of the defendant, the plaintiff appealed.

AFFIRMED.

James D. Pardee, Esq., for appellant.

The first error complained of by appellant was upon the admission of evidence. The plaintiff was asked the direct question. "What instructions did you give, Mr. Bell, with respect to putting Mrs. Loomis in possession?" Which was objected to as being improper redirect examination and it not appearing to have been in the presence of Mrs. Loomis, and the court sustained the objection. The agent's authority for putting Mrs. Loomis in possession was a fact in issue, or relevant to the issue, and it was proper to determine whether he had obeyed his authority or not with respect to establishing the fact of delivering the property to Mrs Loomis.

In the case of Gestering v. Fisher, 46 Mo.App. 603, the court says: "In an action wherein a principal is sought to be held on a contract made for him by an agent, his instructions to the agent are always admissible as evidence of the extent of the agent's actual authority if the extent of the authority is in issue in the case." To the same effect are cases of Paul v. Brown, 58 N.H. 93; Bank v. Bank (C. C.), 3 Ohio Dec. 141; Brantly v Life Ins. Co., 52 Ala. 554.

Where the power of an agent is not exhibited at the time of the contract, and does not form a part of it, the principal may introduce evidence to show that the agent was without authority to make the contract in question. Chaffe v. Stubbs, 38 L. A. 656-658; Bank v. Steamship Co., 95 Cal. 1; Thatcher v. Kancher, 2 Col. 698; Mininger v. Knox, 8 Minn. 110.

The authority of an agent may always be shown and be shown by parol evidence. Lyon v. Thompson, 16 Iowa 62; Snow v. Warner, 51 Mass. (10 Metc.) 132; Lunford v. Smith, 12 Gratt. 554; Dean v. Everett, 90 Iowa 242.

The court erred in refusing to strike out the testimony of the witness Bell relating to a chattel mortgage that he had asked Mrs. Loomis to sign a month after she had taken possession. It was shown by Bell's testimony that he had no authority to ask her to sign the mortgage. This testimony came out on cross-examination over the objection of the plaintiff, and it was moved by plaintiff that the same be stricken out. This testimony was prejudicial to the plaintiff, as it had a tendency to show a waiver of the conditions of the contract of sale. The evidence was not shown to be authorized by plaintiff, she knew nothing of it and the transaction took place long after the trade was made and Bell's authority had ceased, it being outside the scope of his authority and not being empowered to do so specially, he had no implied power to do the act. Where an agent exceeds his authority conferred, his acts will not bind the principal. 1 Ency. of Law (2 Ed.), 986, note 3; King v. Levy, 13 So. Rep. 282; Towle v. Leavett, 23 N.H. 374; Reaney v. Culbertson, 21 Pa. 507; Soule v. Dougherty, 24 Vt. 92.

A broker has no implied authority to sell personal property, on credit, except when specially empowered to do so. 4 Ency. of Law (2 Ed.), 964, note 4; Wilshire v. Suit, 1 Campbell 258; Illinois v. Delafield, 8 Paige (N.Y.), 527; 1 Ency. of Law (2 Ed.), p. 1014; Burks v. Hubbard, 69 Ala. 379; Payne v. Potter, 9 Iowa 549; Graul v. Stetzel, 53 Iowa 715; School District v. Ins. Co., 62 Me. 330; Mfg. Co. v. Giran, 65 Mo. 92; Taylor v. Starkey, 59 N.H. 142.

Parties conversant with the value of real or personal property may, in connection with the facts, state their opinions of the value. Springfield & S. Rd. Co. v. Calkins, 98 Mo. 538; Nelles v. McCarn, 35 Barb. 115; Clarion Bank v. Jones, 88 U.S. 21 Wall., 325; Wright v. Quirk, 105 Mass. 44; Seyfarth v. Road Co., 52 Mo. 449; Palmer v. Smith, 56 A. 516; Cluck v. Road Co., 79 S.W. 80; Ramish v. Kirshbraun, 90 Cal. 581-582.

"In an action for damages an instruction which assumes that the plaintiff has proven damages is in effect a usurpation of the province of the jury by the court and necessarily prejudicial to the defendant, notwithstanding the fact that another portion of the charge tells the jury that they are the judges of the facts and the credibility of the witnesses." To the same effect are the cases of People v. Glassman, 12 Utah 238; Hawley v. Corey, 9 Utah 175; Haun v. Railway, 22 Utah 346; Wood v. Steinan, 9 So. Da. 110; Dennie v. Johnson, 8 N.D. 153; Dean &c., v. Ross, 105 Cal. 227; Mabb v. Stewart, 133 Cal. 556-563.

It is erroneous for the court to assume in its instructions to the jury that a certain fact exists, although it then submits to them the question of whether or not it does exist. Cahoon v. Marshall, 25 Cal. 197.

If the agent exceeds his authority conferred his acts will not bind the principal. 1 Ency. of Law (2 Ed.), 987; King v. Levey, 13 So. Rep. 282; Towle v. Leavett, 23 N.H. 374; Reaney v. Culbertson, 51 Pa. 507; Soule v. Dougherty, 24 Vt. 92.

Third parties dealing with an agent are put upon their guard by the fact and do so at their own risk and must ascertain the agent's authority. Bohart v. Oberne, 36 Kans. 284; Chaffe v. Stubbs, 37 La. 656; Chase v. Iron Works, 55 Mich. 139.

While the agency is a special and temporary one, the authority must be strictly pursued and the principal is not bound if the agent exceeds his authority. 1 Ency. of Law (2 Ed.), 993, note 1.

The court also erred in overruling plaintiff's motion for a new trial on the ground of excessive damages appearing to have been given under the influence of passion or prejudice, as shown by the statement of facts in this case and the evidence in the case. The only evidence on damages was the testimony of the defendant that he did not know anything about the rental value of the premises, and did not know what was the reasonable value of the use of the furniture, and did not know whether he was paying a reasonable amount of rent for the use of the premises unfurnished. The appellate court will set a judgment aside and grant a new trial on the question of excessive damages, where there is no legitimate proof in the record to sustain a judgment. Farrand v. Church, 17 Utah 469; Rohwer v. Chadwick, 7 Utah 385; Murray v. Railway, 16 Utah 356; Croco v. Railway, 18 Utah 311; Mangum v. M. Co., 15 Utah 534; Budd v. Railway, 23 Utah 515; Breager v. Railway, 24 Utah 391; Kennedy v. Railway, 18 Utah 325; Lowell v. Herald Co., 6 Utah 175; Anderson v. Railway, 23 Utah 265; Naylor v. City, 4 Utah 491.

Messrs. Evans & Evans, and E. A. Walton, Esq., for respondents.

Counsel next complains of the giving of the seventh instruction. It is a matter of elementary law that if a person accepts a benefit of an unauthorized act made in his behalf, that he must, at the same time accept the burdens of the transaction. And he cannot adopt a part and repudiate a part. Mechem on Agency, 130; Bishop, Cont., 1110; Eberts v. Selover, 44 Mich. 519; Sackett on Instructions, 10, p. 65; Daniels v. Brodie, 11 L.R.A. 81.

The rule is well settled that where newly-discovered evidence is simply impeaching evidence it will not warrant a new trial. Stoakes v. Monroe, 36 Cal. 388; Klopenstine v. Hays, 20 Utah 45. Or cumulative: Klopenstine v. Hays, supra; Larson v. Onesite, 21 Utah 38.

RITCHIE, District Judge, delivered the opinion of the court. BARTCH, C. J., and McCARTY, J., concur.

OPINION

RITCHIE, District Judge

STATEMENT OF FACTS.

The appellant, Mary A. Shafer owned furniture in a rooming house in Salt Lake City. She listed it for sale with Goddard &amp Savage, real estate agents of Salt Lake City, authorizing them to sell it for $ 1,750--$ 1,000 cash in hand, and $ 750 in deferred payments, payable $ 50 per month. They showed the property to a Mrs. Loomis, at Murray, Utah but did not conclude a sale to her. Afterwards Alfred Bell, another real estate broker, with whom the property was also listed by Mrs. Shafer, talked with Mrs. Loomis. An exchange of property was considered between them. It was proposed to place Mrs. Shafer's property at a valuation of $ 1,750, and Mrs. Loomis was to trade for it furniture of her own at Murray at a valuation of $ 1,200; leaving a difference of $ 550 to be paid by Mrs. Loomis to Mrs. Shafer. Mrs. Shafer claims that the only authority she gave Bell was to close the transaction on the condition that the difference was paid by Mrs. Loomis in cash. The negotiations were carried on through Bell. Mrs. Loomis stated in her testimony that she did not agree with Bell to pay the difference in money, but that she agreed to pay it in monthly installments of $ 50 each. On or about the 18th day of November, 1903, the Loomis property at Murray was delivered to Mrs. Shafer. A little later Mr. Bell placed Mrs. Loomis in possession of Mrs. Shafer's property in Salt Lake, the property in controversy. It appears that Mrs. Loomis owed $ 336 on her Murray furniture to a dealer in Salt Lake City, and Mrs. Shafer agreed, with the latter's consent, to assume $ 300 of it, and Mrs. Loomis was to pay that amount to Mrs. Shafer. About the time that Mrs. Loomis took possession of the Shafer property she paid this $ 300 to Mrs. Shafer. Nothing more was paid by Mrs. Loomis, and about January 20, 1904, Mrs. Loomis sold the property thus received from Mrs. Shafer to George Russell, the respondent in this case, giving him a chattel mortgage for $ 550 on other property of hers to secure him against loss in case of any defect being proven in her title to the property she had acquired from Mrs. Shafer. Mrs. Shafer claims that she never knew that Bell authorized Mrs. Loomis to pay the $ 550 in monthly...