Trent v. Sherlock

• Decision Date: 18 November 1901
• Citation: 66 P. 700,26 Mont. 85
• Parties: TRENT et al. v. SHERLOCK.
• Court: Montana Supreme Court

66 P. 700

26 Mont. 85

TRENT et al. v. SHERLOCK.

Supreme Court of Montana

November 18, 1901

On rehearing. Reversed.

For former opinion, see 61 P. 650.

BRANTLY C.J.

This cause is before the court on a rehearing granted upon application of respondents on November 13, 1900. The argument and decision have been delayed on account of the illness of counsel for appellant. For a brief statement of the facts reference is made to the former opinion in 24 Mont. 255, 61 P. 650. These additional facts may be noted, as they do not appear in that statement: The Hope Mining Company was organized under the laws of the state of Washington. Its trustees, except the president, Pitner, reside in Seattle, in that state, and its general office is there. On the day following the execution of the contract by Franklin, the mine superintendent, Pitner, Franklin, and Trent returned from Butte to Basin. Trent states that he took possession of the property after some conversation with Field, the manager Pitner then being at his residence, near by. He further states that, after the contract had been entered into by himself and Franklin at Butte, he tole Pitner that Franklin had given him a bill of sale, but that Pitner said that he did not care to know anything of it and it must be understood that he did not.

The conclusion stated in the former opinion was that the defendant should be granted a new trial, on two grounds First, that the trial court erred in admitting in evidence the contract upon which the plaintiffs found their claim to the property involved; and, second, in refusing to submit to the jury a certain instruction requested by the defendant. Upon consideration of the argument and the authorities presented by counsel in support of the motion for a rehearing, we still thought that the trial court had erred in refusing to submit the requested instruction, but were inclined to the opinion that in holding that there was not sufficient evidence to go to the jury upon the question whether the written contract had been ratified by the Hope Mining Company, and that it should have been entirely excluded, we were in error. Further consideration of the subject has confirmed this impression, and we now think it the better view that the contract was properly admitted with the evidence tending to show that it was ratified by the corporation through its president, Pitner. From the fact that the corporation was organized under the laws of another state, and had intrusted to Pitner the general--practically the exclusive--management and control of its affairs in Montana, he was impliedly authorized to do any act necessary and proper, or usually done in the conduct of the ordinary business of the corporation. Under this condition of affairs persons dealing with him could not be required to look further, and inquire what express authority his principal had intrusted to him. He therefore had implied authority to make purchases of property for the corporation either for cash or on credit, and to secure the payment of debts thus incurred for the purpose of keeping the mill in running order. Had the contract in question been executed on behalf of the company by him, it would, under the circumstances, have been prima facie the contract of the corporation, and binding upon it. No such implied authority belongs to an agent whose powers are apparently, as well as in fact, limited to the scope of the particular employment. A superintendent of a mine is not as such, authorized to make contracts for machinery and other supplies necessary for the milling or smelting operations of his principal. If, however, the principal permits such an agent to act generally for him, or in other capacities than those for which he was employed, and thus holds him out as having the authority to do so, the principal cannot escape liability upon contracts made on his behalf by his agent acting in such other capacities. Franklin's authority being limited to a particular employment, the contract in question was not prima facie the contract of the corporation. Nor was the usage and custom of business shown to be such in this particular instance as to justify the inference that he had authority, either as superintendent or manager, to pledge the property of the company. As was said in the former opinion: "Buying and selling or pledging are acts of a different nature. An authority to do the one by no means implies the authority to do the other; and, when it is sought to show an implied authority in the agent to do the act in question by proof of consent or acquiescence of the principal, this can be done only by proof of consent to or acquiescence in acts of a similar nature, or by proof of such...