Singer Manufacturing Co. v. Christian

Opinion by Mb. Justice Elkin The learned counsel for the appellant has specified thirty assignments of error to the rulings of the court below in the admission of testimony, charge to the jury and answers to points. No useful purpose would be served by a consideration of the separate assignments of error. For the purpose of review we will only consider two questions. First, had Lament, acting as the agent of the appellant, authority to make the alleged contract set up by the defendant in the court below; second, was the defendant entitled to recover damages for the loss of profits and the maintenance of the plaint in idleness arising from the failure of the plaintiff company to keep the machines sold by it to defendant, continuously employed in accordance with the terms of the alleged agreement. At the time the contract was entered into Lament was the manager of the Philadelphia district of the manufacturing department of the plaintiff company. With the exception of the general agent, lie was the highest officer of the company in Pennsylvania. The territory over which he exercised supervision as agent was extensive, embracing eastern Pennsylvania and New Jersey. The business under his management was large, and its conduct necessarily involved the exercise of wide discretion. According to the testimony of plaintiff, Lament had the right to sell sewing machines for cash, on time, or on lease, and on at least two occasions prior to the making of the alleged contract had sold the defendant machines oh credit. It was conceded that his authority was not limited by any writing. Under these circumstances, the court below properly submitted the question of the scope [540] of his agency to the jury to determine whether he had the right to enter into the kind of a contract set up by the defendant. The learned trial judge directed the attention of the jury to the testimony relating to the scope and character of the agency of Lament in transacting the business of the plaintiff company. There was no error in such submission. The fact of agency and the scope of the power of an agent are questions for the court where the authority is created by ah instrument in writing, but where such authority is to be implied from the conduct of the parties, or where the agency is to be established by witnesses, the fact and scope of the agency are for the jury: 1 Am. & Eng. Ency. of Law (2d ed.,) p. 968. The jury were left to determine the authority conferred upon the agent as a question of fact, and there was ample evidence to support a conclusion that his powers were general. We must, therefore, treat the case as if this fact were established. The learned counsel for appellant earnestly contends that the court erred in admitting in evidence the declarations of Lament as proof of his general authority. It is true that agency cannot be established by the declarations of the agent, but this court has decided as late as Stewart v. Climax Road Machine Company, 200 Pa. 611, th.at it .is not reversible error to admit such declarations in evidence if they are followed with independent proof of such agency. When the agency of Lament was established his declarations were material in the case for the reason that they constituted part of the alleged contract and were the inducement which led the defendant to purchase the machines. In this view of the case the plaintiff company was as much bound by these inducing causes of the contract as if made by itself. “ The declarations or admissions of an agent in such cases are admissible, not for the purpose of establishing the truth of the facts stated, but as representations by which the principal is as much bound as if he made them himself, and which are equally binding whether the fact be true or false: Phillips on Evidence, 73; Hannay v. Stewart, 6 Watts, 487 ; and where a principal is bound for the acts or declarations of his agent, it is generally for the reason that said acts or declarations have led up, or been the inducement to, or explain, or qualify, or form part of some [541] contract, or have caused some act to be done upon the faith thereof: ” B. & O. Relief Association v. Post, 122 Pa. 579. This principle clearly covers the theory of the case relied upon by the defendant. The contention of the appellee depends upon the representations of the agent made at the time the contract was entered into and as the inducing cause thereof, and therefore, under the authorities cited the declarations of the agent were admissible, not for the purpose of establishing the scope and character of his agency, but as showing the inducing cause of the contract relied upon by the defendant, and binding upon the plaintiff company. The plaintiff in the present action is seeking to enforce the contract made by its agent, and even if as a matter of fact that agent exceeded his authority, yet if the plaintiff company seeks to take the benefit of the bargain so.made, it must adopt the contract as its agent made it: Keough v. Leslie, 92 Pa. 424; Caley v. Railroad Company, 80 Pa. 363. This principle is very well stated in Bristow v. Whitmore, 9 H. L. Cases, 391, wherein Lord Kingsdown said: “ The principal cannot approbate and reprobate the contract. He cannot at the same time take the benefit which it confers and repudiate the obligations which it imposes.” A very large number of the assignments of error raise the question as to what is a proper measure of damages in the case at bar. If the contract wras as the defendant contends, that the plaintiff company undertook to keep the machines purchased by him continuously employed until the price for the same should be paid, such contract was predicated on the assumption that profits would be made to an extent sufficient to pay the plaintiff the price of said machines, and when it was broken by the plaintiff it needs neither extended argument nor the citation of authorities to show that the measure of damages would be the profit which the defendant might have made, together with the expense of maintaining the plant in idleness caused by the neglect or refusal of the plaintiff to furnish work continuously according to the terms of the contract. The evidence shows that the defendant was prepared to perform his part of the contract. He maintained his plant, kept his foreman and forewoman, and paid their salaries. The question of expense and profits as a measure of damages was [542] left to the jury under full and complete instructions by the court below. In this there was no error: Hydro-Carbon Fuel Company v. Plumb, 182 Pa. 463; Nixon v. Myers, 141 Pa. 477. The credibility of the witnesses, the fact and scope of the agency, what contract if any was made, and the measure of damages were all submitted to the jury in a fair, impartial and adequate charge by the learned trial judge. Assignments of error overruled and judgment affirmed.