Groneweg & Schoentgen Co. v. Estes

COX, J. Appellant contends that the contract was complete when Estes signed it, and that all of the correspondence between defendant and the brokers, which indicated a misunderstanding as to what the contract really was, the brokers insisting that it was for eight hundred cases, and Estes that it was only for [426] three hundred cases, was not binding upon plaintiff; and, further, that the testimony upon which defendant relies to show that he had offered, to furnish seventy-five per cent of the three hundred cases did not show that he made the offer to the plaintiff; that he only made it to the brokers, and that they were not repre senting the plaintiff at that time. The defendant insists in this court that the brokers were the agents of plaintiff through the entire transaction. That plaintiff is bound by the letters written by the brokers and that these letters show that the minds of the parties did not meet, and, hence, no contract was ever executed between them, and that 'they further show that notwithstanding the fact that there was no contract, defendant had offered to furnish seventy-five per cent as he was bound to do under the contract, and that for both of these reasons plaintiff cannot recover. It occurs to us that as the evidence appears in this case, as preserved in this record, there can be no question that the contract Avas complete when Estes signed it and mailed it to the brokers, and further, defendant afterwards recognized the existence of this contract by writing to the brokers that he was ready to furnish 225 cases under it. A broker may be the agent of both parties in the execution of a contract, and frequently is, and, in this case, it will be noticed that in the first instance the defendant employed these brokers to sell the product of his tomato crop; that he received notice from the brokers that the sale had been made. The brokers sent him a contract which had been previously signed by the purchaser, and upon receipt of this contract the defendant signed it, and returned it to them, and, we think, it clear that this constituted a delivery. It seems that this contract was forwarded to plaintiff, though when or how does not appear, but it does appear that in August they wrote defendant thaf they were expecting him to ship them three hundred cases. It seems [427] that the defendant contended all the time that, under the circumstances, he was only required to furnish seventy-five per cent of the three hundred cases, and he rested his defense in this case in the trial court upon the one question that he had offered to furnish the seventy-five per cent which his contract cálled for, and that the plaintiff had refused to accept it. For his proof of this fact he relies upon the fact that he made the offer to the brokers, but there is no evidence to show that the offer was communicated by the brokers to the plaintiff, except what might be inferred from the statement of the brokers themselves in letters written by them to the defendant. This is not sufficient. An agent’s authority cannot be proven by the statements or acts of the agent. While a broker may be the agent of both parties in the negotiations leading up to the contract, yet when the contract is completed, signed and delivered as we hold it was in this case when Estes signed it and mailed it to the brokers, -then the agency of the broker as to both parties ceases, and if it is sought to bind either party by any action of the broker, after the execution of the contract, it must be shown that he had authority to act. There is an entire absence of evidence in this case that the brokers had any authority to represent the plaintiff in the negotiations about the fulfillment of the contract on the basis of a seventy-five per cent delivery, and for this reason the-instruction given to the jury, which submitted that issue to them, was erroneous, for it is familiar law that instructions must be based upon the evidence, and it is error to give instructions not based upon the evidence. Counsel for defendant contend in this court that the .evidence in this case discloses that the minds of these parties did not meet, and, for that reason, no contract was ever executed, and, hence, plaintiff cannot recover. Holding, as we do, that the contract was complete when signed and mailed by Estes to the brokers, this position of defendant’s is untenable. It could only [428] be supported by showing that when the contract which he returned plaintiff; was delivered to plaintiff, that he refused to accept it and insisted that he had purchased eight hundred cases, and as there was no evidence to show that the brokers had any authority to represent the plaintiff in the letters that were written by them, after the signing of the contract, there is no basis on the record in this case for the contention that no contract was executed. Further, that issue was not submitted to the jury. The case was not tried upon that theory in the circuit court, and it is familiar law that an appellant must try his case in the appellate court upon the same theory that it was tried in the court below, especially is this true where the issue is one of fact, and that issue was not submitted to the jury. The jury are the triers of the facts, and, in this case, the question whether or not the minds of these parties met, and whether or not there was, in fact, a contract executed, was purely a question of fact, hence, the court below had no authority to determine it, neither has- the court here any authority, hence, that question, on the record in this case, is not before us for our consideration. For the error noted the judgment will be reversed and the cause remanded. All concur.