Southern Hotel Co. v. Zimmerman

• Decision Date: 18 November 1907
• Citation: 105 S.W. 873,84 Ark. 373
• Parties: SOUTHERN HOTEL COMPANY v. ZIMMERMAN
• Court: Arkansas Supreme Court

105 S.W. 873

84 Ark. 373

SOUTHERN HOTEL COMPANY v. ZIMMERMAN

Supreme Court of Arkansas

November 18, 1907

Appeal from Sebastian Circuit Court; Daniel Hon, Judge; reversed.

Reversed and remanded for new trial.

Youmans & Youmans, for appellant.

1. There is no testimony that Waller acted for appellant in making the contract except his own statement to Zimmerman. Agency can not be established by the declaration of the alleged agent. 31 Ark. 212; 33 Ark. 251; 33 Ark. 316; 44 Ark 213; 68 Ark. 225.

2. There could be no ratification by the appellant of the acts of Waller unless it had knowledge of those acts. 64 Ark. 220; 76 Ark. 567.

Mechem & Mechem, for appellees.

OPINION

BATTLE, J.

G. E Zimmerman and J. C. Jones, partners doing business under the firm name and style of Zimmerman & Company brought an action against Southern Hotel Company, a corporation organized under the laws of Texas, to recover what they alleged was due them "for material furnished and labor performed in plastering and papering rooms on the third floor of the Haylin building, in Fort Smith," in this State. The defendant, answering, denied that it entered into any contract with plaintiffs, or that it purchased any material from them, or that they did any work or furnished any material for it or that it was indebted to plaintiffs in any sum whatever.

In the trial had in the case Zimmerman, one of the plaintiffs, testified that the labor was done and the materials were furnished under contract made by them with C. C. Waller, and under the supervision of one Furlong. Evidence was adduced by the plaintiffs for the purpose of showing that Furlong was the manager of the defendant; that the labor was performed, and the materials were furnished, for the use and benefit of defendant; and that it was responsible for the same; and evidence was adduced by the defendant to prove the opposite.

The court instructed the jury as follows: "1. Plaintiff sues the defendant for work and labor performed for $ 225 and material furnished, $ 223, under a contract with C. C. Waller, claiming that said Waller was acting for and on behalf of defendant. Defendant denies its liability, denies that any work or material was furnished to it, or any work or material was furnished for it. It is admitted that the labor was performed and the material was furnished under a contract with C. C. Waller, but denied that Waller had any authority to act for defendant, and the issue to be tried is whether he was acting for defendant, and whether his contract with plaintiffs for labor and material was ratified by defendant."

And the court, over the objections of the defendant, at she request of the plaintiffs, instructed the jury as follows: "When one has frequently authorized his...