Union Refining Co. v. Bushnell

• Decision Date: 06 January 1879
• Citation: 88 Pa. 89
• Parties: Union Refining and Storage Co. <I>versus</I> Bushnell.
• Court: Pennsylvania Supreme Court

88 Pa. 89

Union Refining and Storage Co. versus Bushnell.

Supreme Court of Pennsylvania.

November 7, 1878.

January 6, 1879.

November 7th 1878.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and TRUNKEY, JJ. WOODWARD, J., absent

Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 204 M. W. Acheson, T. C. Lazear and D. W. Bell, for plaintiff in error.—The advertisement was the act of Brewer, Burke & Co., and was not authorized by McKee, Hackett & Co. It was not admissible to affect defendants: 1 Greenl. Ev., sect. 99; 2 Id., sect. 63. These declarations of an agent, or his acts as such, are not competent to prove agency: Plumsted v. Redebagh, 1 Yeates 502; Clark v. Baker, 2 Whart. 343; Grim v. Bonnell, 28 P. F. Smith 152; Bringham v. Peters, 1 Gray (Mass.) 145. Notice in a newspaper must be brought home to the party to be affected: 1 Whart. Ev., sect. 673-5; Beltzhoover v. Blackstock, 3 Watts 20; Kellogg v. French, 15 Gray 354; Freno v. Freno, 1 W. N. C. 165; Ins. Co. v. Johnson, 11 Harris 76.

Hampton & Dalzell, and R. & S. Woods, for defendant in error. —Agency may be made out as an implication from circumstances, as well as by direct proof. Implied agencies result often out of the relation of employer and employee, husband and wife, parent and child, counsel and client, partners, and the less definite relations into which men are brought in the pursuits of business; but in all such cases it is a conclusion of fact to be deduced from circumstances by a jury, rather than assumed by the court: Jordan v. Stewart, 11 Harris 247.

Mr. Justice GORDON delivered the opinion of the court, January 6th 1879.

The advertisement given in evidence by the plaintiff below, against the objection of the defendant, was, at best, but an ex parte notice or declaration on part of Brewer, Burke & Co., designed to inform whoever might happen to read it that they were engaged in the oil business as commission merchants, and that they were agents for certain refineries, among which was the Liberty. As there is no proof that McKee, Hackett & Co. ever saw or heard of this advertisement, they could not be affected by it, and it was no more entitled to be received in evidence than any other unauthorized declaration of parties claiming to represent this firm. It follows, that this piece of testimony ought not to have been admitted. What remains is to consider whether this evidence could have had any prejudical effect on the defendant's case. Did it tend to establish anything more than was or might have been admitted by the defence without injury to its case? If not, no harm was done, and we cannot reverse for harmless error. The advertisement asserted that these commission merchants were agents for the Liberty Oil Works, but this was not disputed. That they had power to dispose of the products of these works, is proved by McKee, of the firm of McKee, Hackett & Co., a witness for the defendant. He, however, so limits that agency that, without more, it does the plaintiff no good — the powers of it are not sufficiently extensive. It is not merely an agency that will answer the plaintiff's purpose, but an agency embracing extraordinary powers. But upon him is the burden of proof. One seeking to charge another through an agent must not only establish the fact of agency but also the extent of it: Hay v. Lynn, 7 Watts 512; Moore's Ex'rs v. Patterson, 4 Casey 505. Giving, then, the Gazette advertisement all the force possible, and it proves nothing more than was in proof on part of the defence. It may prove an agency of some sort, but it does not define the nature and character of the powers of that agency. One dealing with them on the strength of that publication must do so at his own risk. The advertisement could not, at best, raise a presumption of power exceeding that proved by McKee, that Brewer, Burke & Co., as commission merchants, had the disposition of such portions of the products of the Liberty works as McKee, Hackett & Co. might from time to time consign to them. But what harm could this do to the defendant? Stopping here, the plaintiff had no case. Nay, it was not enough for it to establish in Brewer, Burke & Co. the powers of a general agency. The defendant might have...