Whitton v. Sullivan

Garouttb, J. — Action brought by respondent as a .■stenographer and notary to recover for services rendered .appellant in taking testimony, etc., in a contested election case. A special contract, at the rate of thirty cents a ■folio for the original, and five cents a folio for copies, is relied upon as the basis of the action. Appellant admits that such was the contract, but insists that it was conditional upon his final success in securing a seat in Congress, and that if such event did not occur, then the contract price was an amount much less than is now claimed by respondent. Appellant was unsuccessful in his endeavors to oust his opponent, and hence asserts that the contract here relied upon was rendered nugatory by the failure of the condition upon which it was based. Under the authority of Pavisich v. Bean, 48 Cal. 364, and cases there cited, the complaint is unobjectionable. It is insisted that the court erred in not permitting the appellant to prove the market price for work of a similar character, as tending to show what the contract .in this regard really was. It is a well-recognized principle of law that where a •conflict of testimony arises between the parties as to the .amount to be paid for services rendered under a contract, that proof of reasonable value or market price is admis■sible as tending to show, to some extent, what price was agreed to be paid, and this principle is stated and approved in Ellis v. Woodburn, 89 Cal. 129. But we do not think the question arises in this case. If the conflict •of testimony arose between the respondent and Bowden, and not, as it does, between appellant and Bowden, then this principle of law could be successfully invoked. Bowden and respondent agree in all respects as to the terms of the contract, and Bowden, as the agent of appellant, made the contract. Appellant testified: “I do not recollect ever having had any interview with Mr. Whitton; all the business that I did was with Mr. Bow-den. I relied upon him as my attorney and confidential [483] adviser.....I made arrangements with Mr. Whitton through Mr. Bowden, my attorney.” It will thus be seen that Bowden was authorized by appellant to make a contract with respondent to perform this work, and under such authorization he made a contract with respondent, who performed the work thereunder. Appellant’s cause of complaint is, simply, that his agent, Bowden, exceeded the limitations placed upon his powers, by contracting to pay respondent a greater price for the work than was included in his authority of agency. But this is a matter between the principal and his agent, and with which the party doing the work has no concern. This principle is clearly declared in Mechem on Agency, section 2,83, where the author, speaking as to general and special agents, says: “In either case, the question of the authority of the agent must depend, so far as it involves the rights of innocent third persons who have relied thereon, upon the character bestowed, and not upon the instructions given. Or in other words, the principal is bound to third persons who have relied thereon in good faith, and in ignorance of any limitations or restrictions, by the apparent authority he has given to the agent, and not by the actual or express authority, where that differs from the apparent, and this, too, whether the agency be a general or a special one.” (See also Bryant v. Moore, 26 Me. 86.) For these reasons, conceding appellant’s evidence to be entirely true, the conflict of testimony did not arise as to the amount agreed to be paid to respondent for the labor performed, but arose as to the nature of the authorization given by appellant to Bowden; and hence the evidence offered upon the question as to the market value of that character of work was immaterial, and the principle of law relied upon to sustain the offer entirely.inapplicable. Upon a careful examination of the record, we find nothing additional demanding our attention. . Let the judgment and order be affirmed. [484] Paterson, J., and Harrison, J., concurred. Hearing in Bank denied. Beatty, C. J., dissented from the order refusing a hearing in Bank.