M. Thomas & Sons v. Cummiskey

Mr. Justice Gordon delivered the opinion of the court, March 9th, 1885. The history of this case is neither complex nor lengthy. Sometime about the middle of February, 1882, Dr. James Cunnuiskey, acting as agent for the plaintiff, delivered a number of books to the defendants, who were auctioneers, for sale. At the head of the book and furniture department of the firm, was their agent, Samuel S. Ellis, who had a general charge of these divisions of the defendants’ business, which seems to have been very large and varied. Part of these books were put up and sold, and the remainder were held over for future disposition. At the instance of Ellis these books were left in store on the premises. Cummiskey spoke about having them insured, but from this he was 'deterred by the allegation of Ellis that the firm carried insurance sufficient to cover all the goods in the establishment including these. In immediate connection with these facts, is to be taken the fur [361] ther evidence tbat the defendants bad at this time two policies on the goods in their premises, one from the American Fire Insurance Company for $5,000, and another in the Pennsylvania amounting to $7,500. These covered goods, not only on account of the assured, but also such as they held in trust or on consignment. On the 1st of July, 1882, the establishment, with all its contents, was burned, including, of course, the goods of the plaintiff. As the loss was, as it seems, in excess of the policies, the full amount of the insurance, $12,500, was paid by the companies to the defendants. Some time after the date of the fire, Cummiskey. received a communication from the defendants offering him $199, and on application to them to know what it meant, he was referred to Mr. Keele, who informed him that they would apportion the insurance and give him $199. As this offer was not satisfactory it was not accepted. Now, in order to avoid prolixity in the discussion of this case, we may say, in limine, that the policies above mentioned covered the plaintiff’s goods: Siter v. Morrs, 1 Har., 218. When the defendants received the $12,500, insurance money, a sum far more than necessary to cover the value of the plaintiff’s goods, they held it as trustees and were bound to account for its disposition. It was not the business of the cestui que trust to show that after paying all other claimants there was enough left to cover her goods; on the other hand, it was the duty of the trustees to show how the money which came into their hands was, or ought to be, applied. They chose not to do so, hence, they were properly held to account to the plaintiff for the full amount of her loss. What has been said answers the 12th, 13th, 14th, 15th, 16th and 23d assignments of error.' In this connection the evidence of Cummiskey and Henkels, detailing the conversation with Ellis, and his declaration concerning the amount of insurance carried by his firm, was admissible as proving the conditions under which the goods were left in store with the defendants. Ellis had charge of one or two of the departments of a large business establishment which could not be properly conducted except by such an agent, and he was the one whom the public was expected to consult with reference to the affairs pertaining to his departments. That this is so with reference to corporations has been ruled by this court in the cases of Tanner v. The Oil Creek Railroad Company, 3 P. F. S., 411, and Adams Express Co. v. Schlessinger, 25 Id., 246, and we can see no good reason why it should not also apply to partnerships doing so large a business as to render departmental agencies necessary. So we find in Wharton’s Law of Contracts, sec. 269, the statement, that declarations of an agent, though not specifically authorized by the principal, and even [362] though made contrary to his directions, will nevertheless bind him if made within the apparent range of the authority with which the agent was intrusted. It follows that the evidence objected to on part of defendants was admissible to prove, at least, how, and under what conditions the books were stored. That came within the range of Ellis’s business, and he was certainly not acting outside of that range when he informed customers of the means used by his principals for the safe storage of goods. As the case thus presents itself to us we must refuse to sustain the 1st, 2d and 3d assignments of error, and also the 4th, 5th, 6th, 7th, 8th and 9th. So we agree with the learned Judge of the court below, that if after the fire the defendants requested Dr. Cummiskey to present his account, it was some evidence of the ratification of the agreement made by Ellis to insure the safety of the goods, and that if there was such an after ratification of the acts of Ellis, it was just as effective as a previously executed power: McCullough v. McKee, 4 Har., 289. We, therefore, refuse to sustain the 10th and 11th assignments, and as the 18th, 19th, 20th and 21st embrace exceptions to points of the defendants which were substantially affirmed, we must also dismiss them. The remaining assignment needs no special answer, for whilst it may be admitted that there was no express contract of indemnity between the parties contestant, yet there was an equivalent in the form of an implied contract. Not only was Cummiskey assured that the books were covered by the insurance effected by the defendants, but such was, in fact, the case; they were covered by the policies already mentioned. Therefore, whether there was an express contract or only an implied one, was of no kind of consequence, as in either case the defendants were bound to make good the plaintiff’s loss. The judgment is affirmed.