Covington v. . Newberger

Davis, J., (after stating the facts). Upon disagreement of counsel, the case on appeal was settled by the Judge, as appears from the certificate, and the instructions asked for by the defendant, and the refusal of which constitutes one of *528 the grounds of exception, as appears in the statement of the case, do not appear in the record. Counsel for the appellant proposed to show by affidavits what the instructions asked for and refused were; but this Court cannot permit the case stated to be varied or amended in any such way, and we can only consider the questions presented in the record. The plaintiff was a hotel keeper in the town of Wades-boro. One Lindsay Davis was the traveling salesman or “drummer” for the defendant Newberger, and in the course of his business as such, “ was a transient patron at plaintiff's hotel ” at divers times, from April 1st, 1881, to November 27th, 1882, generally leaving without paying his board, but making occasional payments, as appears by the credits on the account. It was during this time, extending over a period of nearly twenty months, that the credit was given and the debt incurred, which it is sought by this action to recover. There is no evidence of any express agreement or promise on the part of the defendant to pay the debt, and there is no evidence that he knew of its existence till this action was instituted. On the contrary, the plaintiff himself testifies (and this was the only evidence on this point) that he “ never had, at any time prior to the commencement of this action, any conversation or communication with the defendant concerning the account; never notified him that he was extending credit on account of his said drummer; never presented the account to defendant, or made any demand on him before bringing the action.” Is there any evidence of an implied promise on the part of the defendant to pay this debt? Is there any evidence of authority from him to the plaintiff to give this extended credit for the board of the “drummer?” Is there any evidence, from which it might be reasonably inferred or implied, that he would be liables therefor ? Is there any evidence whatever, that the “ agent ” Davis “ had authority to bind *529 his principal (the defendant) for his board bill,” extending over a period of many months? The plaintiff says that there was some evidence in the fact that the defendant Newberger sent Davis, as his agent, through the country to sell goods for him, and that this carried with it the incidental, or implied, authority in Davis to bind the principal for liabilities incurred bj1" the agent, and rendered necessary in the discharge of the duties pertaining to his agency; and for this he refers us to Story on Agency, §§ 73, 78, 98, 119 and 127; Huntley v. Mathias, 90 N. C., 101, and Bentley v. Doggett, 37 Am. Reps., 827. These authorities go to the full extent of declaring, that the principal is liable for any necessary expenses, or for anything that it may be necessary for the agent to do in and about the business of his agency, and when the principal sends the agent out, he sends him with the implied authority to do what is necessary and proper, in order to transact the business for which he is employed. The principal is bound, in such cases, by whatever the agent may do within the scope of his authority. Conceding this doctrine as well settled, can it be reasonably assumed that it is within the scope of the agent’s authority to make debts and charge his principal therewith, as is done in this case? He was employed to sell goods, and it may be, all reasonable and necessary expenses (whether he is furnished with the money by his principal to pay them or not), as he travels through the country, may be an implied charge against his principal, as a necessary incident to the business of the agency; but this must be within the limits, and subordinate to well known custom. The plaintiff in this case testifies that “ it was the general custom, that such patrons (transient patrons) were expected to pay cash for their bills.” It is true, he adds, that he “ thought there were exceptions.” There is nothing stated by him to show, nor does he say, that this case is an exception. If he intended to hold the defendant answerable for the *530 'board bill of Davis, it was manifestly his duty, in the absence of any agreement, to notify him of the failure of Davis '“to pay cash,” in accordance with custom. Wharton on Agency and Agents, §§ 134 and 137. The long and continued failure of Davis to pay cash, according to the general ■custom, ought to have put the plaintiff on inquiry, and it is well said by Wharton, § 139, “ when there is any good reason to put the third party (the party dealing with the agent) on his inquiry, lie is bound to go to the principal for this purpose, or. otherwise, he will open himself to the charge of collusion with the agent against the principal.” But counsel for the plaintiff insist, that the inn-keeper has a lien, even upon the goods of a third person, held by a guest and brought within the inn, and when the defendant re-plevied the goods, he became liable. The landlord or innkeeper’s lien is well recognized, and the case of Cook v. Kane, 57 Am. Reps., 28, cited by counsel, is authority for the position taken by counsel, but it has the qualification, “ unless he knew it was not the property of the guest.” Assuming, that upon a notification of the failure of the drummer, in the first instance, to pay cash, according to the general custom, the defendants would have been liable for his hotel bill (when the amount of the account was insignificant), and assuming that the-plaintiff would then have had a lien upon the trunks and samples in the possession of the drummer, to secure the cash, then due from his customer, and, instead of availing himself of it, had permitted the drummer to carry them away, and extended the credit from time to time, in the manner indicated in the account, and for which, we think, there is no .evidence of authority, then he would have had no lien upon defendant’s property for the amount ■of the unauthorized credit, and the fact that the defendant replevied the goods, cannot help the plaintiff. When there is no evidence, or only a scintilla of evidence, ,or the evidence is not sufficient, in a just and reasonable *531 view of it, to warrant an inference of any fact in issue, the Court should not leave the issue to be passed upon by the jury, but should direct a verdict against the party upon whom the burden of proof rests. Brown v. Kinsey, 81 N. C., 245; Best v. Frederick, 84 N. C., 176; State v. White, 89 N. C., 462; State v. Powell, 94 N. C., 965, and cases cited. There is error, and the defendant is entitled to a new trial. Error. ' Venire de novo.