Brimmer v. M. H. Brimmer & Co.

AlleN, J. It is not necessary to consider tbe first and second assignments of error because the deposition of M. H. Brimmer bas no bearing upon any issue except tbe first, wbicb was answered in favor of tbe defendant. Tbe third, fourth, and fifth assignments of error are without merit. Tbe record does not show what would have been tbe answer of tbe witness to tbe questions propounded to him, but if we assume that tbe purpose was to show tbe insolvency of tbe Brimmer Company, this was not relevant to any issue before tbe jury, and it was not in controversy, because tbe record shows that tbe petitioner was appointed receiver on account of insolvency. Tbe motion for judgment of nonsuit was properly overruled, as it was admitted that tbe Brimmer Company bad bought tbe wagon, and that it was tbe owner, unless tbe defendant could establish that it bad been left in its possession as a pledge, and tbe burden was on the defendant, as bis Honor charged, to satisfy tbe jury of 'the facts upon wbicb it relied to show that it was entitled to retain tbe wagon or its proceeds. Tbe seventh assignment presents tbe question as to whether tbe verdict is sufficient to support tbe judgment, and there can be no doubt that tbe.answer to tbe fourth issue, standing alone, justified bis Honor in holdiijg that tbe receiver was entitled to tbe proceeds- of tbe sale of tbe wagon, as it so finds in no uncertain language. It appears, however, that tbe fourth issue was not answered by tbe jury, and that, on tbe contrary, bis Honor submitted only tbe first issue to tbe jury and reserved tbe others to be answered by himself as matters of law, and as there was no evidence of a meeting of tbe directors conferring power on tbe manager to pledge tbe wagon, be answered tbe third issue “No”; and being further of opinion that if there was no meeting of tbe directors, tbe manager was without authority, be answered tbe fourth issue “Yes.” There is no. specific exception taken to this action of the judge, but it is important as it throws light on tbe trial, and shows that tbe case was tried upon tbe theory that tbe manager was without authority, unless tbe directors by resolution authorized bis action. *439 After tbe first issue was answered, tbe only fact in dispute was wbetber tbe manager, Brimmer, bad authority to make tbe pledge, and if tbis could be shown otherwise than by a resolution of tbe directors, tbe issues are not determinative of tbe controversy, if tbe first is not inconsistent with tbe fourth, and if there is evidence supporting a finding in favor of tbe defendant, on tbe question of authority, tbe judgment ought to be reversed. Tbe authority of a managing agent is broad (Tiffany Agency, 216), but generally be cannot by virtue of bis office sell, mortgage, or pledge tbe corporate property. Duke v. Markham, 105 N. C., 131; 7 R. C. L., 645; Buckwald Transfer Co. v. Hurst, 19 Ann. Gas., 169, and note. Tbe rule is not, however, inflexible, and is applied reasonably, taking into consideration the business, the duties to be performed, the relation of the property dealt with to the business and to the other property, the surrounding circumstances and the principle that be “has the implied power, in the absence of express limitations, to do all acts on behalf of the corporation that may be necessary or proper in performing his duties.” Clark on Corporations, 494. “It is a general principle, applicable in all such cases, wbetber tbe agency be general or special, unless tbe inference is expressly negatived by some fact or circumstance, that it includes tbe authority to employ all tbe usual modes and means of accomplishing tbe purposes and ends of tbe agency, and a slight deviation by tbe agent from tbe course of bis duty will not vitiate bis act, if tbis be immaterial or circumstantial only, and does not, in substance, exceed bis power and duty. Such an agency carries with and includes in it, as an incident, all tbe powers which are necessary, proper, usual and reasonable as means to effectuate tbe purposes for which it was created.” Huntley v. Mathias, 90 N. C., 103. “Tbe power of an agent, then, to bind bis principal may include not only tbe authority actually ■ conferred, but tbe authority implied as usu'al and necessary to tbe proper performance of tbe work intrusted to bim,' and it may be further extended by reason of acts indicating authority wbicb tbe principal has approved or knowingly or at times even negligently permitted tbe agent to do in tbe course of bis employmebt.” Powell v. L. Co., 168 N. C., 635. “The principal is held to be liable upon a contract duly made by bis agent with a third person: (1) "When the agent aéts within the scope of bis actual authority. (2) "When the contract, although unauthorized, has been ratified. . (3) When the agent acts within the scope of bis apparent authority, unless the third person has notice that the agent is exceeding bis authority, the term ‘apparent authority’ including the power to do whatever is usually done and necessary to be done in order to carry *440 into effect the principal power conferred upon the agent and to transact the business or to execute the commission which has been intrusted to him.” Wynn v. Grant, 166 N. C., 47. In the application of this doctrine' it was held in Huntley v. Mathias, supra, that an agent traveling through the country to sell engines had implied authority to hire a horse, and in Brittain v. Westall, 137 N. C., 32, that an agent to buy, to whom money had not been furnished, could buy on credit and bind his principal. It is also well settled that although the agent has no authority, express or implied, that the principal is responsible for his acts if he ratifies them; that taking benefit of the transaction with knowledge is a ratification (Starnes v. R. R., 170 N. C., 224), and that when the agent acts outside of his powers, the principal must adopt the whole transaction or repudiate the whole. “He cannot accept the beneficial part and reject what is left of it.” Pub. Co. v. Barber, 165 N. C., 482. Is there evidence of authority or ratification? The Brimmer Company was in business as an undertaker and the defendant company was in the livery business. The evidence tends to prove that the Brimmer Company did not own horses and carriages, and that they were necessary in the conduct of its business; that it had been hiring from the defendant, and owed it a considerable account; that the defendant refused to permit the further use of the horses and carriages without security; that Brimmer, the manager, then pledged the wagon, and with the understanding that the defendant would continue to furnish the horses and carriages; that the president of the company was told of the pledge and the agreement; that the company continued to hire the horses and carriages and permitted the wagon to remain in possession of the defendant, and that when the defendant went to see the president about the account he said the defendant could hold the wagon until it was paid, the last statement appearing in the recital of the evidence in the charge. It appears, therefore, that authority to bind the principal may exist without a resolution of the directors, and that ratification is as effectual as previous authority, and as there is evidence of authority and ratification, and no issue was submitted to cover these important contentions of the defendant, there must be a new trial, because, as said in Tucker v. Satterthwaite, 120 N. C., 122, “It is the duty of the judge, either of his own motion or at the suggestion of counsel, to submit such issues as are necessary to settle the material controversies arising in the pleadings, and that in the absence of such issues or admissions of record equivalent thereto sufficient to reasonably justify, directly or by clear implication, the judgment rendered therein, this Court will remand the case for a new trial.” New trial.