Garbutt Lumber Co. v. Prescott

Beck, J. The original motion for a new trial contains the general eind usual grounds, it being contended that the verdict is contrary to the evidence and without evidence to support it; and the first eight grounds of the amended motion are merely an elaboration of the contention that the verdict is without evidence to support it, pointing out with particularity in what respects the verdict is not supported by the evidence in the case. The evidence set out in the record is voluminous and conflicting; and inasmuch as the ease is remanded for a new trial, no opinion is expressed as to the weight of the testimony in regard to the various issues raised. In the last ground of the motion error is assigned upon the fol [328] lowing charge of the court: “The notes sued on being payable to A. Y. Prescott, and the check given by Garbutt Lumber Company to cash the other note being payable to A. Y. Prescott or order, were sufficient facts to put defendants on notice that they were dealing with an agent; and it was incumbent upon them to ascertain the extent of agent’s authority, and if they failed to do so, then they dealt with the agent at their own risk as to whether he was authorized to deal with them to the extent which they sought to deal with him.” We are of the opinion that the court erred in giving to the jury this instruction. The evidence was conflict* ing on the question as to whether or not W. J. Prescott, at the time he delivered the notes to the Garbutt Brothers, was acting in the capacity of a general or special agent for his wife, Mrs. A. Y. Prescott, and there was some evidence from which the jury might have found that he was authorized to deal with the notes as his own property and had a right to so treat them. That being the ease, the question as to whether he was a general agent or a special agent in the matter of disposing of the notes, or whether he was authorized, under the facts of the case, to dispose of them as completely as if he were the owner, should have been submitted as a question of fact to the jury,'without any intimation or expression of opinion by the court as to the sufficiency of certain facts and evidence “to put defendants on notice that they were dealing with an agent,” and that “it was incumbent on them to ascertain the extent of the agent’s authority.” In giving the instructions now under consideration the court invaded the province of the jury and undertook to decide, as a matter of law, a question to be determined by the jury, as other issues of fact are to be determined. .Such error requires a reversal of the judgment refusing a new trial. Civil Code, §4334. Nor was the charge .relied on as qualifying and correcting that just held to be erroneous sufficient to remove the injurious effect of such charge, or to withdraw it from the jury. Other portions of the court’s charge were excepted to, but, after a careful consideration of the same, we are of the opinion that they were substantially correct, and are open only to the criticism that the instructions contained in them somewhat inaptly, or, possibly, inaccurately express the proposition of law which the court intended to enunciate for the guidance of the jury. Judgment reversed. All the Justices concur.