Newberry v. Seaboard Air Line Railway Co.

Hoke, J. There was evidence on the part of the defendant tending to show that the contract was different from that declared on by plaintiff and that same was made with one E. C. Carter, the local passenger agent at Weldon, and further that 0. B. Rodwell, with whom plaintiff testified the contract was made as defendant’s “transportation agent,” was only the local freight agent and yardmaster at Weldon, and on this testimony, in either aspect of it, we think the defendant is entitled to a new trial of the issues on the first cause of action. On authority, these local railroad agents, whether passenger or freight, in charge of the company’s business of their respective stations, have “the power to do what is usual and necessary to carry on the business intrusted to them, and to make all such contracts as are reasonable and appropriate to that end.” Within the scope of these powers their acts are as binding as those of a general agent on a broader field, and under the limitations suggested their authority is subject to the well-recognized principle of the law of agency, that it may not be diminished or affected by restrictions or special instructions from the company which are uncommunicated to the shipper. Gooding v. Moore, 150 N. C., 198; Harrell v. R. R., 106 N. C., 258; 1 Elliott on Railroads (2 Ed.), see. 303; 2 Hutchison on Carriers (3d Ed.), sec. 630; 6 Cyc., p. 431. Applying the doctrine, there are many well-considered cases to the effect that these local freight agents may make reasonable contracts for the shipment of goods, on a specified day, in cars of a certain kind, etc., and such contracts will bind, though the terms of the particular agreement are in excess of the powers actually conferred. Merriwether v. R. R., 128 Mo. App., 647; *160 Harrison v. R. R., 74 Mo., 364; Storer v. R. R., 109 Iowa, 551; R. R. v. Racer, 10 Ind. App., 503; Nichols v. R. R., 24 Utah, 83; Walchon v. R. R., 22 Wash., 253; Greene v. R. R., 142 Ind. App., 532. While giving full adherence to the general principle sustained in these cases, we are of opinion that the contract now in question is not within the powers usually possessed by one who is, in strictness, a local agent' — -a contract to provide a baggage car of a certain kind to haul an outfit of this character, including stage platform, tent, stage, etc., and to supply the same at each week-end for an indeterminate period and at other stations of the company. Without deciding that the character of the ear should of itself be regarded as determinative, there are many cases which hold that a local agent has not the power to contract for cars to be supplied at a separate and distinct station, and to uphold a contract of that character, special authority must be shown or it must appear that the contract has been in some way approved or ratified. Vorhees v. R. R., 71 Iowa, 735; R. R. v. Hodges, 10 Texas Civ. App., 543; Elkins v. R. R., 23 N. H., 275; Green e v. R. R., 70 Mo., 672; 2 Redfield Railways, p. 137; and on the general principles controlling in such cases, see Bank v. Hay, 143 N. C., 326; Stephens v. Lumber Co., ante, 107. With these facts in evidence, therefore, on the part of the defendant, tending to show that the contract was made with a\ local agent of the company, there was error in holding as a matter of law that the same was within the scope of the agent’s powers, and that no limitation on his authority could be shown. For the same reason there was error in withdrawing the telegrams relevant to the question from the consideration of the jury. Those directly between local and the general passenger agents were competent in so far as they tended to show the nature of the contract and the restrictions which were imposed on the local agent’s authority, and most of them are admissible in corroboration of such agent, who testified as to the terms of the contract as contended for by defendant. The motion to nonsuit could not have been allowed, there being facts in evidence, on the part of plaintiff, tending to show that the agent with whom the plaintiff claimed to have con *161 tracted bad power to make tbe same, and, further, that tbe contract as contended for by bim bad been ratified by tbe company, and, further, there was pertinent evidence bearing on tbe fourth and fifth issues, those submitted on plaintiff’s second cause of action, and to which the errors referred to have no application. We find no error in the determination of these issues, and the actionable wrong and the incidental damage having been established without reversible error and being easily severable, it is proper that the judgment as to that portion of plaintiff’s recovery should be affirmed.. In 3 Oye., p. 447, the position is stated as follows: “When a judgment appealed from consists of distinct and independent matters, so that the erroneous portions thereof can be segregated from the parts that are correct, the court will not set aside the entire judgment, but only so much as is erroneous, leaving the residue undisturbed. Thus, where a judgment, entered on several causes of action, is correct as to some of them, but erroneous as to others, it may, if the judgment is divisible, be reversed as to the latter and affirmed as to the former.” This will be certified, that there may be a new trial as to plaintiff’s right to recover on the alleged breach of contract, the first cause of action, and that the judgment for the recovery on the second cause of action be affirmed. Partial new trial.