Wilson v. Vogeler

• Decision Date: 31 January 1905
• Citation: 79 P. 508,10 Idaho 599
• Parties: WILSON v. VOGELER
• Court: Idaho Supreme Court

79 P. 508

10 Idaho 599

WILSON v. VOGELER

Supreme Court of Idaho

January 31, 1905

PRINCIPAL AND AGENT-TELEPHONE COMMUNICATION-CONTRACT MADE BY TELEPHONE-SUBSTANTIAL CONFLICT IN EVIDENCE-HEARSAY-INSTRUCTIONS.

1. Held, in this case that there is not a substantial conflict in the evidence and that the evidence is not sufficient to sustain the verdict.

2. A conversation between respondent and one G. in regard to whether the latter could handle certain seed at a certain price, held hearsay and incompetent.

(Syllabus by the court.)

APPEAL from the District Court of the Fifth Judicial District. Honorable Alfred Budge, Judge.

Action to recover damages for violation of a contract. Verdict and judgment for the plaintiff. Judgment reversed.

Reversed and remanded, with costs in favor of appellant.

F. S Dietrich, for Appellant.

The making of this contract was not within the scope of Martin's authority, or apparent authority. He was merely what is ordinarily called a commercial "drummer." He was recognized as such by the plaintiff. As such an agent he has no authority to make the contract in question. The general rule is that a drummer or commercial traveler has authority only to take orders subject to the approval of his principal. (John Matthews' Co. v. Renz, 22 Ky Law Rep. 1528, 61 S.W. 9; Clough v. Whitcomb, 105 Mass. 482; Bensberg v, Harris, 46 Mo.App. 404.) The second assignment involves the ruling of the court in permitting the plaintiff to detail a conversation between himself and one H L. Griffin at Ogden when the plaintiff was not present. (1 Greenleaf on Evidence, par. 467.) The plaintiff knew and was advised by Martin himself that he (Martin) could not make this contract without authority from the defendant. The plaintiff knew that if he dealt with Martin and made such a contract, it would be worthless and not binding upon the defendant, unless Martin first procured express authority to execute it. The plaintiff knew that such authority, if procured at all, was procured by telephone. He took his chances in getting his authority in that way. There could be no valid contract under such circumstances; nor could there be any valid authorization to make such a contract, if such a mistake was made. It was for the jury to find whether there was a mistake or not, but it was for the court to advise the jury of the effect of such mistake, so that they could find their general verdict intelligently. As to the effect of such mistake, see Clark on Contracts, p. 288; 20 Am. & Eng. Ency. of Law, 2d ed., pp. 809, 811.

Holden & Holden, for Respondent.

Those dealing with an agent are entitled to presume that his agency is general. (Trainer v. Morrison, 78 Me. 160, 57 Am. Rep. 790, 3 A. 185.) Nowhere in the record does it appear that prior to or at the time the contract in question was made, respondent had even seen any of appellant's letterheads or order blanks. Nor does it appear that respondent had knowledge of the limitations appellant claims to have put upon his agent's authority. The rule of the law is that the rights of third parties who have reasonably and in good faith relied upon the apparent authority of the agent cannot be prejudiced by secret limitations or restrictions upon it of which they had no notice. (Mechem on Agency, secs. 279, 708; White Lake L. Co. v. Stone, 19 Neb. 402, 27 N.W. 395; Keith v. Hirschberg Optical Co., 48 Ark. 138, 2 S.W. 777.) A party may testify to that portion of the conversation over a telephone which is spoken in his presence, although he could not hear the replies and did not know with whom the conversation was held. (Miles v. Andrews, 153 Ill. 262, 38 N.E. 644; 1 Johns on Evidence, sec. 210; Wolf et al. v. Missouri P. R. Co., 97 Mo. 473, 11 Am. St. Rep. 331, 11 S.W. 49, 3 L. R. A. 539-542; McCarty v. Peach, 186 Mass. 67, 70 N.E. 1029, and cases cited.)

SULLIVAN, J. Stockslager, C. J., and Ailshie, J., concur.

OPINION

The facts are stated in the opinion.

SULLIVAN, J.--

This action was commenced by respondent against appellant, who was then doing business as the Vogeler Seed and Produce Company at Salt Lake City, Utah, to recover $ 1,295 damages on account of the failure of the defendant to deliver fifty thousand pounds of alfalfa seed in accordance with an alleged written contract or agreement dated January 15, 1901. The principal issue presented by the pleadings, and especially by the evidence, was whether or not said agreement was authorized by the defendant, and therefore binding upon him. The case was tried by the court with a jury and a verdict for $ 625 was rendered in the plaintiff's favor. Thereafter the court overruled a motion for a new trial, and the appeal is from the judgment and order denying a new trial. The alleged contract is signed by the respondent and is executed on behalf of the appellant by one S. H. Martin, who was the agent of the appellant, and the main issue was whether or not Martin was authorized by the appellant to execute said contract. Five errors are assigned. The first is that the evidence is insufficient to justify the verdict. It appears from the evidence that S. H. Martin, who signed the contract referred to on behalf of the appellant, had been employed by the appellant to solicit orders upon commission for the appellant. It also appears that all orders taken by him were subject to appellant's approval. It also appears that respondent was advised before the contract in question was executed that said Martin had no general or implied authority to sign said contract, and at that time he told the respondent that he could not close the deal, and that he would telephone the appellant and let him know whether the appellant would permit him to enter into such a contract. But it is contended on the part of the respondent that the appellant conversed with said Martin by telephone, in which conversation he authorized said Martin to make said contract. The respondent testified that said Martin put in his call at the telephone office and after getting the appellant the door of the telephone booth was left wide open and that Martin told Vogeler, the appellant, that he had a chance to sell fifty thousand pounds of alfalfa seed, Purity brand, $ 125 to be paid down and the balance to be paid in sixty days; that Martin said: "Will I sell it? Don't say no." That when he left the telephone booth he said, "All right, come out and we will make the contract," and that they went to an attorney and had him draw up a contract and it was signed and he gave Martin his check for $ 125.

Lee Hughes testified that he was telephone operator in the telephone office at Idaho Falls on the 15th of January, 1901, when the respondent and Mr. Martin were there, and that he heard a part of the conversation between Martin at Idaho Falls, Idaho and Vogeler at Salt Lake City, Utah; that he heard Martin say that he had sold fifty thousand pounds of seed, and the man at the other end said it was all O. K. That when he put the call in he placed the call for Vogeler of the Vogeler Seed and Produce Company. That he came to hear the conversation because an operator on the telephone line has to break in at times to see whether anyone is interrupting and to keep the line clear for the parties talking. On cross-examination he testified that he heard Martin say: "I have sold fifty thousand pounds of seed," and Vogeler replied that it was all O. K; that he did not say five thousand pounds; he said fifty thousand pounds; that the telephone booth door was open while Martin was talking and that he, witness, broke in on the line once or twice; that he heard the conversation when he broke in on different occasions; that he didn't exactly remember what he heard the first time he broke in, and that the conversation between Martin and Vogeler lasted about two minutes; that he broke in twice; that ten or twelve seconds elapsed between the time the fifty thousand pounds of seed were mentioned and the time the answer came, and that he did not hear what passed between them during that time; that he had no particular interest in listening and that he just happened to hear what he did; that he didn't know what was said in addition to what he had testified to; that they talked about two minutes and it is possible Martin may have said, "I can sell fifty thousand pounds and also five thousand more," and that between the time that Martin said fifty thousand pounds and the time that witness heard the reply there was time enough for him to have made that remark; that he didn't hear Martin say anything about five thousand pounds.

Miss Toronto, who was stenographer in Vogeler's office, at the time said telephone conversation took place, testified that she remembered the conversation between Vogeler and Martin at that time, as she was required to stop typewriting while the conversation took place; that she heard Mr. Vogeler say to the person speaking that "You are not to sell fifty thousand...