McKenzie v. Stevens

COLEMAN, J. We think the court properly admitted the declarations of Peter McKenzie, made at the time of his purchasing the articles, in the year 1846. The bill of exceptions discloses that in the year 1844, Peter McKenzie, a youth, the son of said John McKenzie, was at school at Tuskegee, fourteen miles distant from his father’s residence, and that during that year he purchased goods from the plaintiff, which by his direction were charged on account to his father, who, about January,- 1845, paid the account without expressing any disapprobation, or giving any notice not to credit any further; that the son was absent from Tuskegee during the year 1845, and on his return and residence there in 1846, he contracted the account sued for, all the items of which were proved as set forth; that in 1844, the son was seventeen or eighteen years old, and his father a wealthy planter. In Bryan v. Jackson, 4 Conn. 288, the defendant’s minor son had taken up goods of the plaintiff, which the defendant paid- for., without objection, or giving notice not to trust his son any further ; and the son afterwards took up other goods of a similar nature. It was held, that the payment so made by the defendant was equivalent to a recognition of his son’s authority, and rendered the defendant liable for the goods, although he had (but without the plaintiff’s knowledge,) given positive orders to his son to contract no more debts, and had placed him under the’ care of a friend, with instructions to furnish him with every thing necessary and suitable for him. It has been settled that a single payment, without disapprobation, for what a servant bought upon a credit, is equivalent to a direction to trust him in future.—2 Greenl. Ev., § 65; Story on Ag., § 56; 1 Bl. Com. 420. And where a personal relation or state of things is once [693] -■established by proof, the law presumes that the relation or state ■of things continues .to exist as before, till the contrary is shown. 1 Greenl. Ev., § 41. It is insisted in this case, that the lapse -of time, the intervention of about fifteen months between the •dates of contracting the two accounts, overcomes the presumption of the continuance of the agency of the son. This circumstance is sufficiently explained, we think, by the fact of the son’s .absence from Tuskegee during the fifteen months, and when he again applied to the plaintiff for goods, under circumstances similar to those under which he contracted the first account, the continuance of his authority .might be presumed. . The agency of the son to bind his father in the purchase of goods being thus •.established, it is clear that his declaration respecting the subject matter will also bind him, if made at the same time and constituting part of the res gestee. — 1 Greenl., § 113. No testimony having been introduced by the defendant, the court charged the jury that if they believed all the evidence, they must find the amount of the entire account for the plaintiff'. A father is not bound by the contract of the son, even for articles suitable and necessary, unless an actual authority be proven, or the circumstances be sufficient to imply one. But here it is. contended that the proof fully justified the legal presumption of the existence of such authority, and that the court in the charge only declared what that presumption was. On the ..contrary, it is insisted that the question whether the son was authorized to bind the father, in the contracting the account sued on, is a question of fact exclusively for the jury, and that in the charge given, the court invaded the province of the jury. The question is, undoubtedly, a mixed question of law and fact, where, the facts being ascertained, the court will direct the jury ;as to the legal inference they would be bound to make. The facts were proven to the jury, from which, according to the authorities above cited, the law presumed an authority from the .father to the son to buy the goods, and there was no proof to rebut the presumption. This, we think, authorized the court to charge the jury, that if they believed the facts, they were bound to infer the authority; in other words, they were bound to find for the plaintiff, &c. - Let the judgment be affirmed.