Sullivan v. Evans-Morris-Whitney Co.
| Decision Date | 07 April 1919 |
| Docket Number | 3295 |
| Citation | 54 Utah 293,180 P. 435 |
| Court | Utah Supreme Court |
| Parties | SULLIVAN v. EVANS-MORRIS-WHITNEY CO |
Appeal from the District Court of Salt Lake County, Third District Hon. Harold M. Stephens, Judge.
Action by T. J. Sullivan against the Evans-Morris-Whitney Company.
Judgment for plaintiff. Defendant appeals.
AFFIRMED.
Morris & Callister of Salt Lake City, for appellant.
APPELLANT'S POINTS.
It is well settled that one dealing with an agent is bound, at his peril, to ascertain the extent of the agent's authority and is chargeable with knowledge thereof. Baker v Seaward, 127 Pac. (Or.), 961, 962
Third persons who are misled as to the agency, through their own fault or carelessness, cannot invoke the aid of estoppel. Centernial Eureka Mining Co. v. Juab Co., 62 P 1024, 1027; 22 Utah 395.
Dey, Hoppaugh & Fabian of Salt Lake City, for respondent.
RESPONDENT'S POINTS.
Appellant being a corporation it could only act through its agents. George H. Taylor was one of its trusted agents, placed by appellant in sole and exclusive charge of the branch office at Eureka, Utah, "for the accommodation of Tintic customers." Lester v. Snyder, 55 P. 613.
The defendant is a mining stock broker principally engaged in the business of buying and selling mining stocks and mining securities. Its principal place of business is in Salt Lake City, but during the period complained of by plaintiff it had a branch office or place of business in Eureka, Utah, in charge of a local manager.
Plaintiff brought this action to recover the alleged selling price of 1,000 shares of mining stock which he alleges he directed the defendant to sell. He also alleges that defendant notified him that the sale was made as directed, but neglected and refused to pay him for the stock or for any part thereof. Plaintiff also alleges that the stock had been left in possession of defendant for a considerable length of time, subject to his order and direction, prior to his giving the order to sell the stock.
The only material issue raised by defendant's answer is that the transaction complained of was had with its agent or manager of the Eureka branch office, one Geo. H. Taylor, and that Taylor had no authority to receive and hold certificates of stock as alleged in plaintiff's complaint; that, if he did receive them for that purpose, he received them, not as defendant's representative, but in his own individual capacity. The plaintiff, in reply, relies on certain matter in estoppel, the particulars of which will appear in our review of the evidence.
The trial court, sitting without a jury, found for the plaintiff, and judgment was duly entered. Defendant appeals.
In the last analysis, the only question to be determined is: Was Geo. H. Taylor, who was admitted to be the defendant's manager at the Eureka branch office, acting within the scope of his authority, or apparent authority, as agent for defendant in the transaction of which plaintiff complains in the present case?
This requires at our hands an examination of the evidence relied on by plaintiff to support the judgment. The following facts are either admitted by defendant or conclusively established by the evidence:
(1) That defendant opened up a branch office in the town of Eureka for the purpose of facilitating its own business and accommodating its customers in the Tintic mining district.
(2) That it installed the said Geo. H. Taylor as its manager at said place and held him out as such.
(3) That no limitation upon his authority as manager at said place was known to plaintiff at the time of the transaction which constitutes the subject-matter of plaintiff's complaint.
(4) That defendant caused to be posted upon the building occupied as its branch office, and above the front door thereof, the following sign, which extended practically the entire length of the building:
Branch Office
Evans-Morris-Whitney Co.
Mining Brokers.
George H. Taylor, Manager.
Phone 57.
(5) That defendant caused to be published in the Eureka Reporter, a weekly paper published in Eureka, the following advertisement:
Evans-Morris-Whitney Co.
Mining Securities.
Brokers.
26 Exchange Bldg., Salt Lake.
A branch office for the accommodation of Tintic customers has been opened at Eureka under the management of George H. Taylor. Phone us for quotations. Office No. 57--Residence 259.
(6) That defendant caused to be printed and distributed at various public places in Eureka a card the upper portion of which contained a detailed statement of commission charges for the buying and selling of stock while the lower part contained the following:
Evans-Morris-Whitney Co.
Brokers.
Salt Lake Eureka.
Eureka office under the management of George H. Taylor. Telephone Nos.; Office 57, Residence 259.
This sign, advertisement, and card, together with the fact that Taylor occupied the office as defendant's local manager and assumed to act for defendant in the matter of receiving orders from customers relating to stock transactions and assumed to communicate with defendant company at its Salt Lake office in relation thereto, constitute the indicia of Taylor's authority as manager of defendant's business at that place.
As to the actual transaction out of which this controversy arose, the evidence on behalf of plaintiff shows that in April, 1916, while Taylor was acting as defendant's manager at Eureka, Mrs. T. D. Sullivan, a resident of that place and mother of plaintiff, placed an order with defendant, through Taylor as manager of the branch office, to purchase for her 1,000 shares of the capital stock of the Columbus Extension Mining Company, a mining corporation; that Taylor immediately placed the order with defendant at its Salt Lake office, and the order was duly executed, the stock purchased and statement thereof made by defendant through Taylor to Mrs. Sullivan; that she paid for the stock the price thereof including commission the sum of $ 120; that she did not receive the stock, and, when asked why she did not, she replied:
"Well, I am in the habit of leaving my stock with the brokers when I buy it."
She said that was her custom with the different brokers with whom she had done business. She also stated she had done so with defendant company on different occasions, specifying particular instances, naming the stock so purchased, the dates of the purchases, and when the stock was received. Her testimony showed that, in one instance after purchasing the stock from defendant, she left it in defendant's office for about a year, in another instance for about a year and three months. Her explanation as to why she did this was that in case of assessment the company would look after it and give her notice, also in case she wanted to sell the stock it would be with them to sell. On cross-examination defendant's counsel, evidently for the purpose of showing that the stock was retained by the broker as security, sought to show that witness had purchased some stock on margins, but this the witness positively disclaimed, reiterating that she left the stock purchased in the hands of the broker. In relation to the particular stock in question, she stated that when she gave her check to Taylor, made payable to defendant, she asked Taylor to have Evans-Morris-Whitney Company hold the stock until further notice.
Within a few days after this transaction, Mrs Sullivan sold the stock to plaintiff and requested Taylor to have Evans-Morris-Whitney Company transfer it to plaintiff. Taylor promised to do so. This was early in May, 1916. Plaintiff, testifying in his own behalf in relation to the stock purchased from his mother said, in substance, that he asked Taylor concerning the transfer of the stock to him, and Taylor said it had been done. The witness also testified he did not receive the stock or see it, but he understood it was in Evans-Morris-Whitney Company's hands. He also testified he told Taylor he would leave the stock with Evans-Morris-Whitney Company, as some day he might want to sell it. It also appears from the evidence that, some time in July, Columbus Extension stock, by consolidation or otherwise, was converted into Columbus Rexall Mining Company stock for an equal number of shares. Plaintiff was informed by Taylor that his Columbus Extension stock had been converted into Columbus Rexall stock. Plaintiff never called for this stock, but left it the same as he had left the other. In July, 1916, plaintiff was notified by Taylor of an assessment on the stock in the sum of $ 20, which plaintiff paid in money. In November following, plaintiff was notified of another assessment on the stock in the same amount, which sum he also paid. Plaintiff paid another assessment, on notice from Taylor, for the same amount in April, 1917. The payments were all made to Taylor and receipts taken at the time of payment. On August 15, 1917, plaintiff directed Taylor to have the stock sold. Two or three days later, plaintiff received a typewritten statement purporting to come from defendant at Salt Lake City showing a sale of the stock on August 16th, for amounts aggregating the sum of $ 1,638.45. About the same time, Taylor and plaintiff met in Salt Lake City, and Taylor explained to plaintiff that he had had Evans-Morris-Whitney Company send plaintiff's check addressed to him at Bingham. Plaintiff said that would be all right, as his mail would be forwarded to Eureka. Plaintiff returned to Eureka, and after waiting for the check for several days, finally called up A. W. Young, who, in the meantime, had succeeded Taylor as defendant's agent at Eureka, and requested Young to have Evans-Morris-Whitney...
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