Trollinger v. . Fleer

"Walker, J., after stating the case: There was ample evidence to show that a contract for the hire of plaintiff and his sons had been made by the defendant, and we think the case was fairly submitted to the jury, with proper instructions as to the law. The motion to nonsuit, and the prayer for peremptory instructions, were, therefore, properly overruled. The charge may not have been as full or as explicit as defendant may have desired it to be; but, if not so, they should have asked for special instructions, so that it might be made so. McKinnon v. Morrison, 104 N. C., 354; Simmons v. Davenport, 140 N. C., 407; S. v. Yellowday, 152 N. C., 793. We have no doubt that the learned judge would promptly have complied with any such request. *86 We need not decide tbe ease by an answer to tbe question whether the letters constituted a definite offer and the filing of plaintiff’s telegram an acceptance thereof, as of the date of such filing, without regard to the fact, if true, as defendant testified, that he did not receive the telegram before he left Philadelphia, or to any loss or delay .in transmission, or to any other casualty which prevented a receipt of plaintiff’s notice of acceptance. This subject is fully discussed in Clark on Contracts (2 Ed.), pp. 25-27; 1 Wharton on Contracts, sec. 18; 1 Parsons on Contracts (9 Ed.), star pages 475-485, all citing and commenting upon the celebrated case of Dunlop v. Higgins, 1 H. L. Cases, 381. There is, of course, no contract unless the parties assent to the same thing in the same sense; but it is not necessary that the assent should be given by the party himself, as it may be given by his agent, and it was in this way that the case was submitted to the jury. The real question then is, Was there evidence in the case that M. L. Fleer was the agent of the defendant to make the contract ? and this agency could be established by express authority given to him or by the conduct of the defendant in holding him out as his agent for that purpose. He was certainly willing to contract with the plaintiff upon the terms stated in the letter of 21 and 22 June. The evidence tends to show that he had left M. L. Fleer in full charge of his farm, with apparent authority to act for him in the premises, and there was also evidence that he afterwards recognized him as his agent by ratifying what he had done and with knowledge of the facts. “Where a person, by words or conduct, represents or permits it to be represented that another person is his agent, he will be estopped to deny the agency, as against third persons who have dealt, on the faith of such representation, with the person so held out as agent, even if no agency existed in fact.” Tiffany on Agency, p. 34. This has been called an agency by estoppel, but whether the defendant was estopped or not, the fact of the defendant’s having put M. L. Fleer in general charge of his business, with the apparent right to make contracts of employment, is competent -to be considered by the jury, upon the question whether an agency existed *87 or not. The rule is tbus stated in Keinbardt on Agency, secs. 89a to 92, especially in section 91: “The doctrine of estoppel as applying to agency may, therefore, be summarized that where a party holds out another as his agent, or has knowingly allowed such person to act for him in one or more similar transactions without objection, he will, as a general rule, be estopped to deny the agency, whether it in fact existed or not, if a third party, without knowing the real state of the matter, and acting in good faith, and as a reasonable man would act from the appearance of things as created by the supposed principal, relies upon the existence of the agency and deals with the supposed agent as such, if the transaction be within the real or apparent scope of the authority exercised.” But, “It is not necessary, however, that the principal’s assent or sanction be given in advance of the performance of the transaction which constitutes the subject-matter or purpose of the agency. If his assent be obtained after the transaction by a confirmation of the assumed relation, it is equally binding and efficacious. Such a confirmation of the authority of the supposed agent is called a ratification.” Beinhardt on Agency, sec. 96. This assent is equivalent to prior authority. “The relation of principal and agent is created by ratification when one person adopts an act done by another person, assuming to act on his behalf, but without authority or in excess of authority, with the same force and effect as if the relation had been created by appointment.” Tiffany on Agency, p. 46. There were facts and circumstances which the jury might well have found from the evidence to exist, and which would reasonably induce a careful and prudent person to suppose that M. L. Fleer was clothed with sufficient authority to make the contract of hiring; and certainly there was ample evidence to support a finding that the defendant had ratified his acts. There was a direct conflict between the plaintiff and the defendant in their testimony upon this question, but it was for the jury to pass upon the evidence and to find the truth of the matter. If defendant held his brother out as his agent and thereby induced others to act to their prejudice, upon the assumption that he had full authority to represent him, it is the same in law as if he had expressly authorized him to do *88 so; or if be ratified wbat be did, it is tbe same as if be bad actually and expressly conferred tbe requisite authority. In either Case, be is bound. Bank v. Hay, 143 N. C., 326. This covers all tbe exceptions to evidence, refusal to nonsuit, refusal to instruct as requested, and to tbe charge as given. It is to be noted that tbe exceptions to tbe charge were taken to instructions which bad already been given without exception — in other words, to tbe repetition of those instructions. But waiving that defect, we place our decision upon another ground. Tbe question was really one of fact, which tbe jury have found against tbe defendant. They believed tbe plaintiff’s version. A careful review of tbe case leads us to tbe conclusion that the learned judge committed no error at tbe trial. No error.