Studebaker Corporation of America v. Hanson, 818

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtPOTTER, CHIEF JUSTICE.
Citation24 Wyo. 222,157 P. 582
Decision Date17 May 1916
Docket Number818

157 P. 582

24 Wyo. 222



No. 818

Supreme Court of Wyoming

May 17, 1916

Rehearing Denied October 16th, 1916, Reported at: 24 Wyo. 222 at 248.

ERROR to the District Court, Laramie County; HON. WILLIAM C. MENTZER, Judge.

Action by the Studebaker Corporation of America against Alpheus P. Hanson. From a judgment for defendant on a counter-claim plaintiff brings error. The facts are stated in the opinion.


Wm. C. Kinkead and Dana & Blount, for plaintiff in error.

The matter set forth in defendant's cross-petition is not properly pleadable as a counter-claim, as it did not arise out of the contract or transaction set forth in plaintiff's petition as the foundation for its claim and is not connected with the subject of the action; there is nothing in the record upon which it could be claimed that the repairs and supplies sued for were made necessary by reason of the alleged breach of warranty; the court erred in admitting evidence of acts and declarations of alleged agents for the purpose of proving agency. (Brigham v. Peters, 1 Gray 139; Streeter v. Poor, 4 Kan. 353; French v. Wade (Kan.), 11 P. 138; Railway Co. v. Kinman (Kan.), 31 P. 126; Hatch v. Squires, 11 Mich. 185; Howe v. Clark, 15 Kan. 272; Mechem on Agency, 100.) It was error to admit the testimony of defendant and cross-petitioner as to declarations of Hicks for the purpose of proving the identity of plaintiff. (Bohart v. Obner, 13 P. 388; Lin v. Mayer, 34 P. 970.) An agent can bind his principal only to the extent of his authority. (Cook on Corporations, 726; Browning v. Kinkle (Minn.), 51 N.W. 605, 606; Brandy v. Ferebee, 68 N.C. 356.) The agency must be first established. (Rosenstock v. Tormey, 32 Md. 169; Shesler v. Patton, 100 N.Y.S. 286; Mathes v. Lumber Co., 158 S.W. 729.) The relation of principal and agent cannot be established by the acts and conduct of the alleged agent. (Wood Co. v. Crow, 30 N.W. 609; Fleming v. Daly, 56 P. 946; Cronquist v. Smith, 133 P. 130; Sloan v. Sloan, 78 P. 893.) Declarations of repair men are inadmissible to prove the identity of their employer; there was no evidence of value. Under instruction No. 4 the verdict could not exceed $ 100.00; instructions Nos. 4 and 8 are in conflict. Instruction No. 8 was an incorrect statement of the law as to the measure of damages for breach of warranty; the two instructions on measure of damages were inconsistent in the giving of said instructions and were reversible error. (Mechem on Sales, Sec. 1817; Hook v. Stovall, 26 Ga. 704; Park v. Richardson Co. (Wis.) 64 N.W. 859; Douglas v. Moses, 65 N.W. 1004.) The true measure of damages for breach of warranty is the difference between the value of the article and what it would have been if it had been as represented. (Allen v. Anderson, 22 Tenn. 581; Himes v. Kiehl, (Pa.) 35 A. 632; Stilwell-Bierce Co. v. Biloxi Canning Co., 29 So. 513; Sanderson v. Trump Mfg. Co., 102 N.E. 2; Skoog v. Mayer Bros. Co., 142 N.W. 193; Rossi v. Beaulieu Vineyard, 130 P. 201; White Automobile Co. v. Dorsey, 86 A. 617; Foster v. Smith, 163 Ill.App. 613; Skerrill v. Coad, 138 N.W. 566; Shaw v. W. S. & S. Co., (Col.) 128 P. 480.) There was no evidence to connect plaintiff with the sale or warranty of the automobile; the assignee of a chose in action does not assume any obligation of the assignor to the debtor. It was error to admit secondary evidence of documents without laying the foundation therefor. Copies of letters are not admissible in the absence of notice to produce the originals. (Elliott on Evidence, Sec. 1489; Burlington Lumber Co. v. Whitebreast Coal, &c. Co., 66 Iowa 292, 23 N.W. 674; Foot v. Bentley, 44 N.Y. 166; Traber v. Hicks, 131 Mo. 180, 32 S.W. 1145; Anglo-American, &c. Co. v. Cannon, 31 F. 313; Vol. 1, Sec. 208; Elliott on Evidence, Sec. 1419-1420; Anglo-American Packing & Provision Co. v. Cannon, 31 F. 314.)

W. E. Mullen and H. S. Ridgely, for defendant in error.

It was proven that the repairs and labor sued for were furnished to make good the plaintiff's warranty; it was proven that defendant relied upon published representations of plaintiff given him at the time of the sale and that plaintiff was the identical Company that sold the automobile through its agents at Denver. It was proven that plaintiff, existing under other corporate names, had conducted its business for more than sixty years prior to the sale and that it had merely reorganized its business under a new name; the Denver concern was a branch agency of the plaintiff company; the agency of Hicks and others who were connected with the sale transaction and efforts made to comply with the plaintiff's warranty was proven by an array of circumstances independent of their declarations made to defendant. Plaintiff is chargeable with the breach of warranty pleaded. There are exceptions to the rule that agency cannot be proved by acts and declarations of the agent (Missouri P. Ry. Co. v. Simons, et al., 25 S.W. 996); where an agency is once held to be general and not special. (Johnston, et al. v. Milwaukee & Wyoming Investment Co., 46 Neb. 480; Fore v. Hitson, 70 Tex. 520, 8 S.W. 292; Smith v. Wise, 58 Ill. 141; Haskell v. Starbird, 152 Mass. 118, 25 N.E. 14; Rowland v. Apothecaries' Hall Co., 47 Conn. 387; Townsend, Executor, v. Edward Chappell, et al., 12th Wall. 681, 20 Law. Ed. 436; Murphy v. W. H. and F. W. Crane, Ann. Cas. 1913D. 643.) Defendant's exhibit J was admissible. (Field v. Farrington, 19 Law Ed. 923; Indianopolis Co. v. St. Louis Co., 30 L.Ed. 639.) The agency having been established by other evidence, the testimony of Hicks was admissible. (Henderson v. Coleman, et al., 115 P. 439.) An employer is bound within the limits of authority which he has apparently delegated to his agent. (31 Cyc. 1219; Hanover Bank v. American Dock Co., 148 N.Y. 612, 43 N.E. 72, 51 Am. St. 721.) The value of the automobile was proven as well as the cost of the new motor. There is no evidence in the record upon which to base requested instruction No. 10 and it was properly refused. The copies of letters received in evidence were admissible, as plaintiff failed to account for the original. (Abbott's Trial Evidence, pp. 326-355; Chesapeake & Ohio Railway Co. v. Stovk, 51 S.E. 161, 104 V. 97; Union Surety & Guaranty Co. v. Tenney, 65 N.E. 688, 200 Ill. 349; Seibert's Assignee v. Ragsdale, 44 S.W. 653, 103 Kentucky 206.) Instruction No. 11 was properly refused. (Hall v. Studebaker Corporation of America, 79 S.E. 750.)


OPINION [157 P. 583]


The Studebaker Corporation of America brought this action in the district court against Alpheus P. Hanson to recover an amount alleged to be due for goods, wares and merchandise furnished and labor performed during the months of July and August, 1911, at the request of the defendant, and on his promise to pay therefor. It appears from the evidence that plaintiff's claim was for supplies furnished and labor performed for the purpose of correcting a defect in the construction of an automobile. The petition alleged that the work was done and the goods furnished by the Studebaker Colorado Vehicle Company, a corporation duly organized and existing under the laws of the state of Colorado and carrying on business in the city of Denver in that state, and that on or about the first day of January, 1913, the plaintiff purchased all of its accounts including the account sued on, and that the same had been duly assigned to the plaintiff.

The answer denies generally the allegations of the petition, and alleges in substance that in 1910 a corporation known as "The Studebaker Corporation" was doing business at Denver, Colorado, through a branch house and sales agency known as the "Studebaker Colorado Vehicle Company"; that it was re-organized some time prior to January 1, 1913, under the name of "The Studebaker Corporation of America," and that the plaintiff as so re-organized is the same company as the Studebaker Corporation that had been doing business in 1910 through the said Studebaker Colorado Vehicle Company at Denver; that during said year of 1910, the defendant bought of the Studebaker Colorado Vehicle Company, "a branch house and a representative agent of the Studebaker Corporation," an E-M-F automobile, under a guaranty that the same was a good and perfect car, and that if it was not perfectly satisfactory to the defendant the plaintiff would make it so, and that defendant [24 Wyo. 228] bought the automobile, relying on said guaranty, paying to the said company the sum of $ 1,350 cash for the same, "the said corporation at the time warranting that the said machine would do good work, and that if it failed in any particular it would put it in good shape." The answer then alleges a breach of the warranty by setting forth the facts of defendant's experience with the car, to the effect that it did not work right from the time of the purchase, that after having repeatedly examined and tested the car in an attempt to ascertain the cause of the trouble, the plaintiff, through its agent, in 1911, took the car to Denver and agreed to put it in shape for use, provide a new engine if necessary, or replace the car with a new one; and that all of the expense and work done on the car for which plaintiff claims pay was done by the plaintiff company at its own instance and not at defendant's request. The answer further alleges that after the car was so kept a long time it was returned to Cheyenne and it was stated to defendant that a new engine had been put in, but that the substituted engine was an old one, badly worn in all its parts and practically worthless; "and that nothing was furnished the defendant by way of work or material save at the option of the said corporation that sold the car and while it was endeavoring to put the car in commission; that during the time said corporation...

To continue reading

Request your trial
1 practice notes
  • Palmer v. State, 847
    • United States
    • United States State Supreme Court of Wyoming
    • May 17, 1916
    ...given a preliminary examination as provided by law, after his arrest upon a due and sufficient warrant under a proper complaint charging [24 Wyo. 222] a crime defined and made punishable by the laws of the state; that the subsequent proceedings were in strict accordance with the statute in ......
1 cases
  • Palmer v. State, 847
    • United States
    • United States State Supreme Court of Wyoming
    • May 17, 1916
    ...given a preliminary examination as provided by law, after his arrest upon a due and sufficient warrant under a proper complaint charging [24 Wyo. 222] a crime defined and made punishable by the laws of the state; that the subsequent proceedings were in strict accordance with the statute in ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT