Root v. Fay

BAKER, C. J. This is an action to recover five thousand dollars as commission for the sale of mining property. The plaintiff had judgment, and defendant appeals. The plaintiff made his contract with one J. H. Mathews, and his theory is, that Mathews was the agent of the defendant' in and about the purchase of the property. The record is greatly encumbered with objections and exceptions on the part of the defendant to the rulings of the court in the admission of testimony. They are all based upon the idea that the plaintiff could only show a contract direct with the defendant, but it is elementary that whatever a person may legally do himself [22] lie may legally do by the hand of another. Neither is it an objection that the pleadings do not disclose the agency, for it is the theory of the law that the act of the agent is the act of the principal. The principal may therefore be declared against direct. The whole of the evidence is substantially as follows: The plaintiff made a contract with one J. H. Mathews to the effect that if he (plaintiff) induced the owners of certain mines, situate in the White Hills, Mohave County, Arizona, to sell the same on a basis of two hundred thousand dollars, the plaintiff was to have ten thousand dollars commission; or, if he had anything out of which to secure a trade for the property, he was to have five thousand dollars. The plaintiff went to San Francisco and obtained an option upon the property for twelve days from the owners, and placed the •owners and said Mathews in communication with each other. There was frequent telegraphic communications between plaintiff and Mathews about the property. After making this contract Mathews went to Denver, where the defendant, Boot, lived. Boot came into the territory and examined the property. One of the owners (Schaefer) received a telegram at San Francisco, California, from Kingman, Arizona, signed J. H. Mathews, requesting him to go to Los Angeles, California, and meet Mathews. Upon arriving in Los Angeles, he was met by one C. W. Barry, who said, “We are Mathews,” and introduced him to Boot. Boot had accompanied Barry to California, but denied all knowledge of the telegram. The sale of the mines to the defendant was consummated at that time. Boot, when asked to pay plaintiff, admitted that plaintiff had spent money in the matter, but denied that he was responsible for the commissions. Giving to this testimony full scope, and every fair inference, it is clearly insufficient to establish that Mathews was the agent of Boot. There is no question but that an agency may be implied from the acts and conduct of the parties (Wharton on Agency, secs. 44, 121); but it is not at all' clear to us upon what act or series of acts, or conduct, such an inference can reasonably be drawn in this case. The isolated fact that the defendant went to Los Angeles, California, in company with one Barry, and met one of the owners (Schaefer), who had received a telegram signed by Mathews to also go to [23] Los Angeles, is not a convincing circumstance, and that is the strongest circumstance in the whole case. At the close of plaintiff’s case the defendant moved the court to direct the jury to return a verdict in his favor. The motion was denied. We think it should have been granted. The practice of directing a verdict in a proper case has the advantage of saving expense to the litigants and insuring certainty in the application of the law to the facts. Applying the test, and perhaps the best test, for the exercise of this power, would the verdict be permitted to stand if one was returned for the plaintiff? We think the jury should have been instructed to find for the defendant. The judgment is therefore reversed and a new trial ordered. Rouse, J., and Bethune, J., concur.