Short v. Johnson

• Decision Date: 15 February 1909
• Citation: 116 S.W. 658,89 Ark. 279
• Parties: SHORT v. JOHNSON
• Court: Arkansas Supreme Court

116 S.W. 658

89 Ark. 279

SHORT v. JOHNSON

Supreme Court of Arkansas

February 15, 1909

Appeal from Mississippi Circuit Court; Frank Smith, Judge; reversed.

Judgment reversed and cause remanded.

John I Moore and W. J. Lamb, for appellant.

1. The only agency alleged in the complaint was that of Hudson & Fowler. It was therefore erroneous to admit evidence of the alleged agency of Loss Moore--no amendment of the complaint having been made, and no foundation laid for proof of any other agency. 70 Ark. 319. The burden of proof that Moore had authority to bind appellant was upon the appellee. 3 Ill.App 626; 5 Ill.App. 257; 58 Ill.App. 570.

2. The theory that the conversations of the appellee with Hudson were not sufficient to establish agency, but that the conversations between him and Moore might be sufficient, is inconsistent. 66 Ark. 10.

3. An agent's authority cannot be proved by his own declarations. 31 Ark. 212; 33 Ark. 251; Id. 316; 44 Ark. 213; 46 Ark. 222.

J. T Coston, for appellee.

1. Relying on the insufficiency of the evidence, appellant has only presented a mere abstract of it. "Where a defect of proof is the ground of exception, all the evidence in anywise connected with the supposed defect must be set out." 48 Ark. 50.

2. The evidence was sufficient to show the agency of Loss Moore. He was shown to have been the office man at the time of these transactions, had charge of the business, and had been for a number of years with the firm. 110 S.W. 1036; 48 Ark. 181; 112 S.W. 896; 49 Ark. 323; 91 S.W. 184; 13 Am. Dec. 39.

3. It is patent that appellant ratified the purchase of the cotton. Hudson & Fowler's and Moore's authority as agent might have been limited, or they might not have had any authority, yet, when appellant ratified their acts, such ratification related back to the beginning of the transaction, and included the promise to pay the insurance premium and interest. Mechem on Agency, 130; 18 Wall. 340; 59 N.W. 14; 22 F. 113. The custom and usage with reference to payment of insurance premiums and interest by the purchaser became a part of the contract. 19 Ark. *277; 63 S.W. 57, 58; 31 P. 706; 19 S. S. 993.

4. At the trial no objection was made to the introduction of testimony tending to show Moore's agency, on the ground that it was foreign to the pleadings, and that objection cannot now be urged. The pleadings were treated as amended to conform to the proof. 114 S.W. 222.

OPINION

BATTLE, J.

J. A. Johnson sued W. A. Short & Company and Hudson & Fowler for $ 172.54. Plaintiff was engaged in buying, selling, shipping and ginning cotton. He alleged in his complaint that during the fall and winter of 1906 he sold to W. A. Short & Company about 400 bales of cotton; that Short & Company agreed to pay interest on the purchase price of said cotton, and to pay for the insurance thereon from the date of sale, amounting to $ 169.09, and agreed to pay Johnson's draft on them for that sum; that the defendants Hudson & Fowler, who were at the time agents of Short & Company, also agreed to become personally responsible therefor; that on the third day of May, 1907, he drew a sight draft on defendants Short & Company for the $ 169.09, and the same was allowed to go to protest at an additional cost of $ 3.45. He asked for judgment for $ 172.54, the total amount of $ 169.09 and $ 3.45.

W. A. Short & Company answered and specifically denied the allegations of the complaint, so far as they referred to them.

In the trial of the issues of the action before a jury J. A. Johnson, the plaintiff, testified substantially as follows: In the fall and winter of 1906 he was ginning and buying cotton in Osceola. In the early part of October he sold to Hudson & Fowler, as agents of Short & Company, one hundred bales, and afterwards sold to them as such agents other cotton, and in all about 403 bales, valued at $ 18,818.41. He delivered the cotton to a compress company, and sent samples to Short & Company for inspection. The cotton was not paid for. He delivered the compress receipts to the Bank of Osceola with draft for purchase money attached. It was held up for about twenty days. On November 4, 1906, he "put in a call for Short & Company over the telephone," and talked about five minutes to Mr. Moore, who is one of the men in the office of Short & Company at Helena, Arkansas," and I said: 'You have got us in an awful fix; you have tied up all I can borrow. I can't buy any cotton. I wish you would send a man up here to take this question up with me, or let us know what you are going to do.' He said: 'Captain Andy, we are going to take the cotton, and we will reimburse you for everything you are out on the insurance. * * * I will guaranty you won't lose a cent on the transaction. We will take the cotton.' This statement was made in response to my statement that I was paying interest on the overdraft and insurance. It has been the custom ever since 1897 that when the invoice and compress receipts are tendered to the buyer he immediately pays for it; it is then due; and if it is not paid promptly, he pays the insurance and interest on the draft. The interest and the insurance premium were $ 169.09." The only information that he had that Hudson & Fowler were agents of Short & Company was what they told him.

W. A Fowler testified: In the fall and winter of 1906 he was engaged in buying and selling cotton as a member of the firm of Hudson & Fowler in Osceola; that they had a connection with W. A. Short & Company; that their authority was nothing more than a wire or telephone message from Mr. Short to buy so many bales of cotton at a certain figure. "We bought one hundred bales from Johnson for W. A. Short & Company and shipped it to them. It is the custom of buyers of cotton to pay interest and insurance as stated by witness Johnson. Short & Company requested us to send samples of cotton purchased for them. We had instructions from Short & Company to buy so many bales of cotton of certain grades. We went to Mr. Johnson, and he said h...