Union Refining & Storage Co. v. Bushnell

Mr. Justice Gordon delivered the opinion of the court, January 6th 1879. The advertisement given in evidence by the plaintiff below, against the objection of the defendant, was, at best, but an ex parte notice or declaration on part of Brewer, Burke & Co., designed to inform whoever might happen to read it that they were engaged in the oil business as commission merchants, and that they were agents for certain refineries, among which was the Liberty. As there is no proof that McKee, Hackett & Co. ever saw or heard of this advertisement, they could not be affected by it, and it was no more entitled to be received in evidence than any other unauthorized declaration of parties claiming to represent this firm. It follows, that this piece of testimony ought not to have been admitted. What remains is to consider whether this evidence could have had any prejudical effect on the defendant’s case. Did it tend to establish anything more than was or might have been admitted by the defence without injury to its case ? If not, no harm was done, and we cannot reverse for harmless error. The advertisement asserted that these commission merchants were agents for the Liberty Oil Works, but this was not disputed. That they had power to dispose of the products of these works, is proved by McKee, of the firm of McKee, Hackett & Co., a witness for the defendant. He, however, so limits that agency that, without more, it does the plaintiff no good — the powers of it are not sufficiently extensive. It is not merely an agency that will answer the plaintiff’s purpose, but an agency embracing extraordinary powers. But upon him is the burden of proof. One seeking to charge another through an agent must not only establish the fact of agency but also the extent of it: Hay v. Lynn, 7 Watts 512; Moore’s Ex’rs v. Patterson, 4 Casey 505. Giving, then, the Gazette advertisement all the force possible, and it proves nothing more than was in proof on part of the defence. It may prove an agency of some sort, but it does not define the nature and character of the powers of that agency. One dealing with them on the strength of that publication must do so at his own risk. The advertisement could not, at best, raise a presumption of power exceeding that proved by McKee, that Brewer, Burke & Co., as commission merchants, had the disposition of such portions of the products of the Liberty works as McKee, Hackett & Co. might from time to time consign to them. But what harm could this do to the defendant ? Stopping here, the plaintiff had no case. Nay, it was not enough for it to establish [92] in Brewer, Burke & Co. the powers of a general agency. The defendant might have admitted that and yet have been entirely safe. McKee, Hackett & Co. were not dealers in crude oil, except to the extent of supplying their own works. They were, refiners; their business was to manufacture and sell refined oil, and it was no part of their business to sell, or otherwise dispose of, the crude material. Admitting, then, the powers of these agents to be coextensive with the business of the firm, it certainly could not exceed that business, for that must limit the power ordinarily found even in a general agency. We have here, however, these agents undertaking, not merely to dispose of the crude material belonging to their principals, but also, to change the terms of a contract made with those principals. By the contract the oil was to be delivered to McKee, Hackett & Co.; it was in fact delivered to Waring, King & Co., and this on the order of Brewer, Burke & Co., and to apply on their own account, not on that of their principals. We need hardly say that proof of general agency, as that term is ordinarily understood, would fail to meet a case such as this; it could, in fact, only be met by evidence of extraordinary powers in the agents, or of such conduct on part of the principals as would estop them from calling the act in question. It is, indeed, doubtful whether, excluding the testimony of Frederick Fisher, there was enough in the plaintiff’s case to carry it to the jury. It is true, Burke proves that his firm exercised very extensive powers in providing supplies for McKee, Hackett & Co., and in directing the consignment of oil on their contracts, but it is only by supplementing this testimony by that of Fisher, that all doubt about the propriety of the submission of the case is removed. That testimony does, however, remove such doubt. According to his evidence, it would seem as though the business of McKee, Hackett & Co. was almost, if not wholly, controlled and directed by Brewer, Burke & Co. He says he sold a great deal of oil to McKee, Hackett & Co. through Brewer, Burke & Co., and that whilst the contracts were always given to the former firm, he always sold the oil to the latter. He further states that these contracts were frequent, extending over several years; that in 1867 he delivered to Brewer, Burke & Co. some $124,000 worth of oil, one-fourth of which, he thinks, might have been for McKee, Hackett & Co.; that in delivering on these contracts he always dealt with Brewer, Burke & Co., and that they paid him and directed the consignments. He again repeats, that he delivered the oil wherever Burke told him to deliver it; “if the contract was with the Liberty, and he told him to deliver it to the Pacific works, he did so.” That McKee, Hackett & Co. knew of, and sanctioned this assumption of authority by Brewer, Burke & Co., might well be [93] inferred from tbe relations existing between these parties. They occupied the same office. McKee was there daily. Goodwin was not only a member of the firm of McKee, Hackett & Co., but bookkeeper for Brewer, Burke & Co. It is therefore next to impossible that McKee, Hackett & Co. did not know of the disposition Brewer, Burke & Co. were making of their contracts. If, however, McKee, Hackett & Co. permitted their agents to exercise such unlimited and almost exclusive control over their business, outside parties might well accept the orders and directions of the agents, though extraordinary in their character, as equivalent to the orders and directions of the principals. It thus becomes obvious that, under the circumstances above narrated, the error of the court in the admission of the Gazette advertisement, was unimportant, and to reverse on that account would subserve no good purpose. Judgment affirmed.