McClung's Ex'rs v. Spotswood

DARGAN, C. J. This was an action of assumpsit brought by the plaintiff in error for the board of two of the infant chil [169] dren of the defendant’s testator. After the plaintiff bad intro- ’ dueed proof in support of her account, the defendants read in evidence a letter written by the testator to the plaintiff, in which he expressed his surprise at her demand for board, and gtated that he was not able to pay the expenses of boarding his children, as he had plenty of house room for ■ them at home, and if she felt it was her duty to charge for ..their board, he must take them home where they could'be attended to without any extra expense. The letter then concludes- thus : <( That there may be no misunderstanding, I- will state that I never understood that there was to be any charge for board. I therefore decline paying it, either for the past or the future, and if they are expensive to you, you can either send them home or I can send for them. Judy was retained as a nurse; as she is no longer needed in that capacity, you will please send her home.’’ In reply, the testator received a letter purporting to be signed by the plaintiff, which is in the following language: “I am sorry that I wrote to you for the board of the children, but thought it was nothing but right for me to do so. You can do as you please about it, pay or not pay. I will never give the children up until I am obliged to do so. I will keep them and share the last cent I have with them. As •for Judy, the children need as much nursing now as when they were younger. If you wish her to come home, I will send her, and I will have to have some one else to attend them. She is not well enough to go in this morning.” It appeared that this letter was written by a daughter of the plaintiff, and its contents were not known to her, but the evidence conduced to show that upon the receipt of the letter of the testator, the plaintiff being engaged in waiting on the girl Judy, who was sick, requested, or authorized her daughter to answer it, but did not direct the character of the answer, nor give her any instructions what to write. This letter upon the motion of the plaintiff was excluded from the jury, and the defendants excepted. Without inquiring at this time into the effect that this letter would or should have had upon the minds of the jury in rendering their verdict, we will examine only the question of its admissibility as evidence. It is certainly true that the acts of an agent are not binding on the principal until it be shown that he was authorized by his principal to do the acts, or unless the principal has assented to, or ratified them, [170] after they were done. But in most cases, if not in all, the question of agency is a matter of fact, which it is the province of a jury to determine upon under the instructions of the court, and if the testimony tends to prove that the person acting as agent had authority from his principal to do the act, then it is manifest that the court cannot exclude from the jury the act itself, without overstepping the law of its duty and assuming to determine a matter which belongs to the jury, to-wit, the authority of the agent to do the act. The correct rule is this, if there is no proof whatever tending to prove the agency, the act may be excluded from the jury by the court, but if there is any evidence tending to prove the authority of the agent, then the act cannot be excluded from them, for they are the judges of the sufficiency and weight of the testimony. Applying this rule to the action of the court in excluding the letter purporting to be written by the plaintiff to the defendant’s testator, we are constrained to hold that the court erred, for there can be no question but that there was evidence conducing to show that the letter was written by the plaintiff’s authority, and it was for the jury and not for the court to determine on the sufficiency of this evidence. But we apprehend that the reason which influenced the court in rejecting the latter was, that it did not appear that the plaintiff dictated the terms of the letter or knew its contents. But the question whether the letter was written in conformity with the authority given to write it,.was also in this case a question of fact for the jury. Indeed, in most cases where the authority is given by parol, the question whether the agent has exceeded his authority is a question of fact to be decided by the jury under the instructions of the court. — See McMorris v. Simpson, 21 Wend. 610. But independent of this view, I am clearly of the opinion that if the plaintiff’s daughter was authorized to answer the letter of testator, but was not instructed as to the character of the answer to be given, and in consequence of the answer received the defendant’s testator forebore to act or to take his children home, then the plaintiff is as much bound by the letter as if she had expressly dictated its terms; for if a principal clothes his agent with authority calculated to induce others to believe that the agent has full powers to act, the principal must be bound thereby, otherwise third persons acting in good faith might be injured.—See Wilcox v. Routh, 9 S. & M. [171] 476. Indeed, if the authority is general, and the agent is limited by secret instructions as to the mode of executing it, the party dealing with the agent cannot be bound by such secret instructions, unless he was apprized of them. — Story on Ag., § 73, and cases there cited. It will follow conclusively from this, that if the authority to do the act is given, but the mode or manner of executing the authority is not expressed even to the agent himself, the party dealing with Mm is not to be affected if the act be within the scope of the authority, although it be not done in the manner that the principal desired, or would himself have done it. Y7e therefore tMnk, that if the plaintiff authorized her daughter to answer the letter of the defendant’s testator, but did not prescribe the character of the answer, and the answer in • fact influenced the testator and induced him not to take his children home,, the plaintiff must be held as much bound by the answer as if she herself had written it. In no point of view can the ruling of the court be sustained in rejecting the letter as evidence, and for this error the judgment must be reversed. We cannot see that the son of the plaintiff had any interest in the money that might be recovered in this action, and therefore hold that there was no error in admitting Ms evidence. Let the judgment be reversed and the cause remanded. PahsoNs, J., not sittmg.