Uniontown Grocery Co. v. Dawson
| Decision Date | 06 December 1910 |
| Parties | UNIONTOWN GROCERY CO. v. DAWSON. |
| Court | West Virginia Supreme Court |
Submitted February 1, 1910.
Syllabus by the Court.
The general rule is that one dealing with an agent is bound at his peril to know the agent's authority. If in writing he is presumed to have read his warrant of authority.
To create the relationship of principal and agent (broker) there must be a contract of employment, express or implied; and in order to obtain rights himself, or establish liabilities to others, against his principal, the fact of his appointment must be made to appear, by an instrument in writing, by spoken words, or it may be implied from the conduct of the parties, and the nature and circumstances of the particular acts done by the principal.
If a written instrument (letters in this case) be relied on, in order that it may be held to create agency, it must also on its face, or when read in the light of surrounding circumstances, appear that such was the intention.
Where there is no agency in fact, but an intermeddler or stranger one not in privity with the principal, by authority duly given, has assumed to act as agent, and the question is whether such unauthorized act has been ratified, it becomes one of intention on the part of the assumed principal, a fact for jury determination.
Ratification of an unauthorized act of a stranger may not be implied as a conclusion of law from the silence of the party affected by the act, but such silence is a circumstance to go to the jury, with others, from which the jury may imply ratification.
Error from Circuit Court, Morgan County.
Action by the Uniontown Grocery Company against W. E. Dawson. Judgment for defendant, and plaintiff brings error. Affirmed.
Faulkner Walker & Woods, for plaintiff in error.
Forrest W. Brown, for defendant in error.
In the court below the verdict was for defendant, and the judgment overruling plaintiff's motion to set aside the verdict and award it a new trial, was that it take nothing by its action, and that defendant recover his costs. To test the correctness of this judgment plaintiff brings the case here on a writ of error.
Plaintiff a corporation, at Uniontown, Pennsylvania, claiming to have purchased from defendant, a packer at Berkeley Springs, this state, through the agency of one Shearman, a broker at Indianapolis, Indiana, a car load of canned tomatoes, and to be the assignee of similar contracts of other purchasers, through the same agency, of certain other car loads of that class of goods, brought this action against defendant to recover damages for alleged breaches of said contracts.
The only point of error relied on, or saved on the record, is the action of the court denying the plaintiff's motion to set aside the verdict of the jury and award it a new trial.
The controlling question is, had Shearman, the broker, authority; was he the duly authorized agent of Dawson to execute contracts of sale? The position of plaintiff's counsel is, that as the evidence is practically all documentary, letters and correspondence between Dawson and Shearman, not conflicting, but conclusive, or so preponderating in favor of plaintiff's claim, the questions involved are questions of law for the court rather than for jury determination. It is conceded that Dawson never had any direct dealings either with plaintiff or either of the other parties with whom Shearman made contracts in regard to the tomatoes.
The primal question is did Dawson and Shearman sustain to each other the relationship of principal and agent, at the time of the transactions involved? The propositions of plaintiff's counsel are, first, that this agency is established by the letter of Dawson to Shearman of May 18, 1905, and his postal card to Shearman of July 5, 1905; and second, that, if not so established, Dawson's letter to Shearman of August, 1905, and his silence after being notified by numerous letters of Shearman of his sales to plaintiff and others, amounted to a ratification of such acts of agency, binding him, and entitling plaintiff to damages for the alleged breach of said contracts.
The general, and salutary rule is, that where one deals with an agent he is bound at his peril to know his authority. If in writing he is presumed to have read his warrant of authority. Wells v. Life Ins. Co., 41 W.Va. 131, 23 S.E. 527; Cobb v. Glenn Boom & Lumber Co., 57 W.Va. 49, 49 S.E. 1005, 110 Am. St. Rep. 734; Rosendorf v. Poling, 48 W.Va. 621, 37 S.E. 555. And the principal is not, as a general rule, bound by the contracts of one who assumes without authority to represent him as agent. 31 Cyc. 1567; Rosendorf v. Poling, supra.
To create the relationship of principal and broker there must be a contract of employment, express or implied. 19 Cyc. 190; 2 Clark & Skyles, Law of Agency, section 749. Like other agents the broker "derives his authority from the appointment of his principal, and in order to obtain rights himself, or establish liabilities to others, against his principal, the fact of his appointment, must be made to appear," though no special method is requisite, and as in case of other agents the appointment may be made to appear by an instrument in writing, or by mere spoken words, or it may be presumed from the conduct of the parties. Mechem on Agency, section 937. Story on Agency (8th Ed.) section 94, says:
Such actual authority as Shearman must be referred to the letters relied on by plaintiff. In the first, that of May 18, Dawson wrote Shearman It could not well be said, and it is not seriously contended that this letter was authority to Shearman to sell, even if we consider that Dawson knew, as there is some evidence tending to show, that Shearman was a broker. This letter, at most was but information to Shearman that Dawson had tomatoes "to offer," and that he wanted to sell, and to sell at once. But he only invites a proposition. He says "Let me hear at once." Shearman evidently so interpreted this letter, for in his reply, May 22d, he asks for samples, and says: "Upon receipt of the samples we will endeavor to submit an offer to you that will move the lot." Dawson never responded to Shearman's letter. He never sent the samples requested, and Shearman never submitted an offer though he subsequently wrote Dawson urging him to send the samples, and saying he was holding a customer for the goods. But getting no reply, Shearman practically dropped the matter, until without reference to any previous correspondence, Dawson wrote Shearman the postal card of July 5th, 1905, relied upon, as follows: "Dear Sir: I have about 5 cars of 3 lb. tomatoes that I want 65 cts. for, cash, f. o. b. If you are in the market write me here." Certainly it cannot be said that this communication was authority of Dawson to sell, though it does state the quantity of goods, and the price and terms of payment. But it does not authorize Shearman to sell. It is a mere inquiry, or request of the writer, if Shearman is in the...
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