Wilcox v. C., M. & St. P. R. Co.

• Citation: 24 Minn. 269
• Parties: H. L. WILCOX <I>vs.</I> CHICAGO, MILWAUKEE & ST. PAUL RAILROAD COMPANY.
• Decision Date: 05 November 1877
• Court: Supreme Court of Minnesota (US)

Page 269

24 Minn. 269

H. L. WILCOX vs. CHICAGO, MILWAUKEE & ST. PAUL RAILROAD COMPANY.

Supreme Court of Minnesota.

November 5, 1877.

Appeal by plaintiff from an order of the district court for Ramsey county, Brill, J., presiding, denying a motion for a new trial, after verdict for the defendant.

S. L. Pierce, for appellant.

Bigelow, Flandrau & Clark, for respondent.

GILFILLAN, C. J.

Action for failure to deliver to plaintiff two lots of sewing machines, one of twelve, and one of twenty-four machines, received by defendant at Chicago, consigned to and to be by defendant delivered to plaintiff at Minneapolis. The machines were carried by defendant to Minneapolis, and there delivered to one J. S. Parsons. The controversy in the case is over the authority of Parsons to receive the machines. A verdict was returned for defendant.

The plaintiff requested the court to instruct the jury that "in regard to the authority of the person receiving the property from the defendant, mere preponderance of proof of authority is not sufficient. The fact of authority must be clearly established by the defendant." The court declined so to instruct.

Undoubtedly, a carrier who delivers goods to any person other than the consignee must establish the authority of the person to receive them. But this request seems to assume that, to establish such authority, requires a degree of proof greater than that required to establish any other issue in the case, and therein the request was wrong, for such an issue in a civil action is to be tried and determined like other issues in civil actions.

Plaintiff also requested an instruction that "in order to raise a presumption that a person is authorized to act for another, the acts and recognitions of acts relied upon as evidence of authority must be more than one act of the alleged agent, and one recognition of the act by the principal. They must have been done often enough to raise in the mind of a person of ordinary care a presumption of authority given by the principal to the alleged agent." Which request was refused.

This request is bad; a single act of the agent and a recognition of it by the principal may be so unequivocal and of so positive and comprehensive a character, as to place the authority of the agent to do similar acts for the principal beyond any question. The value of such proof does not depend so much on the number of acts as upon their character.

The plaintiff further requested an instruction that "the conversation between Wilcox and the witness Parsons cannot operate as a sale of the machines, because not in writing." This was refused. The conversation alluded to was between Wilcox, J. S. Parsons, and one D. T. Parsons, in which the two Parsons testify that Wilcox agreed to have shipped from Chicago to D. T. Parsons, at Minneapolis, machines enough, at an agreed price per machine, to amount to a certain sum, and that they should be received at Minneapolis by J. S. Parsons for D. T. Parsons. This conversation was proved to show authority from plaintiff to J. S. Parsons to receive the machines from the defendant.

There was no...