Kroeger v. Pitcairn

Mr. Justice Sterrett delivered the opinion of the court, November 20th 1882. The subject of complaint, in both specifications of error, is the entry of judgment for defendant non obstante veredicto. It is contended that upon the facts established by the verdict, judgment should have been entered thereon in favor of plaintiff. The jury were instructed to return a verdict for the amount claimed by him, if they were satisfied the allegations of fact contained in the point presented by him were true. In view of this, the finding in his favor necessarily implies a verification of the several matters specified in plaintiff’s point, and hence it must now be regarded as containing a truthful recital of the circumstances connected with the delivery of the policy and payment of the premium. The transaction, as therein detailed, clearly amounted to a mutual understanding or agreement between the parties that the stock of merchandise, mentioned in the policy, should include one barrel of carbon oil; in other words, that the plaintiff should have the privilege of keeping that quantity of oil in connection with and as a part of the stock insured, without thereby invalidating his policy. It is impossible to regard the transaction in any other light. The jury found that plaintiff “took the policy upon the faith” of the representations made by defendant. These representations were not merely expressions of opinion as to the meaning of the policy. On the contrary, the defendant, acting as its agent and assuming authority to speak for the insurance company, asserted without any qualification that when carbon oil was kept as plaintiff was in the habit of keeping it — a single barrel at a time — it was unnecessary to mention the fact in the policy, or otherwise obtain the consent of the company; that no notice is ever taken of it unless “it is kept in large quantity — say several hundred barrels. In that case, when it is wholesale, it should be mentioned; but, as long as it is kept, not more than a barrel in the store at a time, it is considered as general merchandise and is not taken notice of in [316] any other way.” Such was the language employed by defendant, evidently for the purpose of dispelling any doubt that existed in the mind of the plaintiff and inducing him. to accept the policy and pay the premium; and, to that end at least, it was successful. What was said and done by defendant, in the course of the transaction, amounted to more than a positive assurance that the accepted meaning of the policy was as represented by him. In effect, if not in substance, his declarations -were tantamount to a proposition, on behalf of the company he-assumed (o represent, that if .the insurance was effected it should be with the understanding that a barrel of carbon oil was included in and formed part of the insured stock of merchandise, without, being specially mentioned in the policy. The plaintiff doubtless so regarded his declarations, and relying thereon, as the jury has found, accepted the policy on the terms proposed, and thus concluded, as he believed, a valid contract of insurance, authorizing him to keep in stock, as he had theretofore done, a small quantity of carbon oil. It was not until after the property was destroyed that he was undeceived. He then discovered that, in .consequence of defendant having exceeded his authority, he was without remedy against the company. Has he any remedy against the defendant, by whose unauthorized act he was placed in this false position? We think he has. If the president or any one duly authorized to represent the company had acted as defendant did, there could be no doubt as to its liability. Why should not the defendant be personally responsible, in like manner, for the consequences, if he, assuming to act for the company, overstepped the boundary of his authority and thereby misled the plaintiff to his injury, whether intentionally or not? The only difference is that in the latter the authority is self-assumed while in the former it is actual; but, that cannot be urged as a sufficient reason why plaintiff, .who is blameless in both cases, should bear, the loss in one and not in the other. As a general rule, “ whenever a party undertakes' to do any act as the agent of another, if he docs not possess any authority from the principal therefor, or if he exceeds the authority delegated to him, he will be personally liable to the person with whom he is dealing for or on account of his principal:” Story on Agency. 264. The same principle is recognized in Evans on Agency 301; Whart. on Agency 524; 2 Smith’s Lead. Cases 380, note; 1 Pars. on Cont. 67, and in numerous adjudicated cases, among which are: Hampton v. Speckenagel, 9 S. & R. 212, 222; Layng v. Stewart, 1 W. & S. 222, 226; McConn v. Lady, 10 W. N. C. 493; Jefts v. York, 10 Cush. 392; Baltzen v. Nicolay, 53 N. Y. 467. In the latter case, it is said, the reason why an agent is liable in damages to the person with whom he contracts, when he exceeds his [317] authority, is that the party dealing with him is deprived of any remedy upon the contract against the principal. The contract, though in form that of the principal, is not his in fact, and it is but just that the loss, occasioned by there being no valid contract with him, should be borne by the agent who contracted for him without authority. In Layng v. Stewart, supra, Mr. Justice Huston says: “It is not worth while to be learned on very plain matters. The cáses cited show that if an agent goes beyond his authority and employs a person, his principal is not bound, and in such case the agent is bound.” The plaintiff in error, in McConn v. Lady, supra, made a contract, believing he had authority to do so, and not intending to bind himself personally. The jury found he had no authority to make the contract as agent, and this court, in affirming the judgment; said: “ It was a question of fact submitted to the jury, whether the plaintiff in error had authority from the School Board to make the contract as their agent. They found he had not. He was personally liable whether he made the contract in his own name or in the name of his alleged principal. It is a mistake to suppose that the only remedy was an action against him for the wrong. The party can elect to treat the agent as a principal in the contract.” The cases in which agents have been adjudged liable personally have sometimes been classified as follows, viz: 1st. Whore the agent makes a false representation of his authority with intent to deceive. 2nd. Where, with knowledge of his want of authority, but without intending any fraud, he assumes to act as though he were fully authorized; and, 3rd. Where he undertakes to act, bona fide believing he has authority, but in fact has none, as in the case of an agent acting under a forged power of attorney. As to cases fairly brought within either of the first two classes there cannot be any doubt as to the personal liability of the self-constituted agent; and his liability may be enforced either by an action on the case for deceit, or by electing to treat him as principal. While the liability of agents, in cases belonging to the third class, has sometimes been doubted, the weight of authority appears to be that they are also liable. In Story on Agency, the learned author, recognizing the undoubted liability of those belonging to the first two classes, says, “ Another case may be put which may seem to admit of some doubt, and that is where the party undertakes to act as an agent for the principal, bona fide believing he has due authority, and therefore acts under an innocent mistake. In this last case, however, the agent is held by law to be equally as responsible as he is in the two former cases, although he is guilty of no intentional fraud dr moral turpitude. This whole doctrine proceeds upon a plain principle of justice; for every person, so acting for another, by [318] a natural if not a necessary implication holds himself out as having competent authority to do the act; and he thereby draws the other party into a reciprocal engagement. If he has no such authority and acts bona fide, still he does a wrong to the other party ; and if that wrong produces injury to the latter, owing to his confidence in the truth of an express or implied assertion of authority by the agent, it is perfectly just that he who makes such assertion should be personally responsible for the consequences, rather than that the injury should be borne by the other party who has been misled by itStory on Agency, 264. This principle is sustained by the authorities there cited, among which is Smout v. Ilbery, 10 Mees. & Wels. 1, 9. Without pursuing the subject further, we are of opinion that, upon the facts established by the verdict, judgment should have been entered for the plaintiff, on the question of law reserved. Judgment reversed and judgment is now entered in favor of the plaintiff for $3,027.20, the amount found by the jury, with interest from January 20th 1882, the date of the verdict.