Southern Bauxite Co. v. Brown-Pearson Cash Feed Store

Hart, J., (after stating the facts). It is earnestly insisted by counsel for the defendant that the evidence is not legally sufficient to support the verdict. Counsel first insist that the evidence is not sufficient to show that Gaunt had any authority to act for the defendant in the purchase of the feed in question. According to the testimony of Carter, Gaunt had been working for the defendant about two months before it opened any account with the plaintiff. Gaunt was known as the bookkeeper of the defendant, and acted for it in opening an account for the purchase of feed in the month of June, 1924. Gaunt admitted that he bought the items on the account in June, 1924, and that he had authority from the defendant to make the purchase. He said, however, that he had special authority from the manager of the company to make the purchase. According to his testimony, he never authorized the plaintiff to furnish feed to Ferrell and .charge the same to the plaintiff. According to the testimony of Carter, he did make such an agreement. The jury found in favor of the plaintiff and, by its verdict, accepted the testimony of Carter as true. This would make a case where the undisputed evidence shows that Gaunt had the authority to open an account with the plaintiff for the purchase of mule feed from it. The defendant sold its mules to Ferrell about the first of July, 1924. The plaintiff continued to furnish feed to Ferrell, and charged the same to the defendant by Ferrell. This was pursuant to an agreement between Carter and Gaunt, according to the testimony of the former. Under these circumstances, the jury might have found that Gaunt was acting within the apparent scope of his authority in purchasing the mule feed. The defendant knew that Gaunt had opened an account with the plaintiff for the purpose of the purchase of mule feed by it in June, 1924. If it intended to limit or restrict his authority as to the purchase of feed after the first of July, 1924, it should have notified the plaintiff of that fact. Carter’s testimony brings the case within the rule that, where a corporation clothes a particular agent with the apparent authority to act for it in a particular business or transaction, as to the person dealing with him in good faith, it will be bound the same as if such apparent authority were real. Moore v. Ziba Bennett & Co., 147 Ark. 216, 227 S. W. 753; Thompson v. Collier-Reynolds Grocery Co., 155 Ark. 355, 244 S. W. 355; Austin Western Rd. Mch. Co. v. Grant Co., 164 Ark. 228, 261 S. W. 283; Empire Rice Mill Co. v. Stone, 155 Ark. 623, 245 S. W. 16; Arkadelphia Milling Co. v. Green, 142 Ark. 565, 219 S. W. 319; and Three States Lumber Co. v. Moore, 132 Ark. 371, 201 S. W. 508. It is next insisted that the evidence is not legally sufficient to support the verdict, because, under the testimony of the plaintiff, it was a collateral undertaking. In making this contention, counsel rely upon the testimony of Carter, in one place, where he asks Gaunt if the defendant will stand good for the feed. Carter, however, explained what he meant by this expression, and said that it was his understanding that the account was to be charged to the defendant, and that it alone would be liable to the plaintiff. The account was charged to the defendant, by J. J. Ferrell, because Gaunt asked Carter to charge it that way, and that, under their agreement, the defendant alone was liable to the plaintiff for the feed purchased and sued for in this action. Hence we hold that this assignment of error is not well taken. The next assignment of error is that the court erred in giving instruction No. 5, which reads as follows: “You are instructed that, where a party undertakes to pay for goods to be furnished to his employees, it is an original undertaking and not within the' statute of frauds as a promise to pay another’s debts.” In their brief, counsel say that there was no evidence that Ferrell was an employee of the defendant, and that the evidence shows that he • was an independent contractor and not an employee of the. defendant. At the trial of the case the counsel for the defendant made a specific objection to the instruction, .on the ground that all the evidence showed that Ferrell was an independent contractor, and that the undisputed evidence showed that, even though the defendant promised to pay the account, it was not an original undertaking. As we have already seen, there was evidence upon which the jury might find that the promise of the defendant to pay the feed account of Ferrell was an original undertaking. It is also fairly inferable that Ferrell was an employee of the defendant. At one place in his testimony '¡he stated that he worked for the Southern Bauxite Company. The tmdisputed evidence shows that he was engaged in getting out bauxite ore for the defendant. As far as this case is concerned, it does not make any difference whether hé was getting it out as an independent contractor or as an employee. The undisputed evidence shows that he was being paid for his work by the defendant. It would be equally liable whether he was working as an independent contractor or as an employee. The sole question was whether or not the defendant agreed to pay for the mule feed in question. Its defense was that no such an agreement was made, or that, if such an agreement was made, it was void under the statute of frauds. Hence we hold that this assignment of error is not well taken. The next assignment of error relates to a modification of instruction No. 5, asked by the defendant. The instruction, as requested, reads as follows: “You are instructed that, even though you may find from the evidence in this case that Clem Gaunt told the manager of plaintiff herein that the company would stand good for the feed, this would not be sufficient to bind the defendant company, and you will so find.” The court modified the instruction by adding to it the following: “Unless you further find that the said Clem Gaunt was acting within the scope of his authority. ’ ’ The instruction as requested by the defendant was erroneous, because it tells the jury that, even though it may find from the evidence that Gaunt told Carter that the defendant would stand good for the feed, this would not be sufficient to bind the defendant, and the jury should so find. The instruction as requested would lie erroneous, because it does not take into consideration the other testimony of Carter, which, if believed by the jury, would make the undertaking of the defendant an original and not a collateral one. The instruction, as requested, was faulty because it singles out a portion of Carter’s testimony and makes the right of the plaintiff to recover to depend upon this isolated portion of the testimony. The modification placed upon the instruction by the court was not erroneous if it had been tacked on to a proper instruction. If the defendant had requested the court to instruct the jury, that, even though it might find from the evidence of Carter that the company would-pay for the feed, this would not be sufficient to bind the defendant, unless it should further find that Gaunt was acting within the scope of his authority, this would have been a proper instruction, and should have been given. As we have just seen, the deféndant was not entitled to the instruction as requested at all, and it cannot complain of the modification which did not add anything prejudicial to the defendant’s case, and which would have been proper if the defendant had asked a correct instruction. Harrington v. Los Angeles Railroad Co., 140 Cal. 514, 74 P. 15, 63 L. R. A. 238, 98 Am. St. Rep. 85; and Southern Railway Co. v. Howell, 135 Ala. 636, 34 So. 6. In this connection it may be stated that neither of the instructions quoted above are in proper form, but the defendant made specific objections to each of them, and, on that account, will be deemed to have waived other objections to them. Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140, 124 S. W. 1048. ;We find no reversible error in the record, and the judgment will therefore be affirmed.