Rankin v. New England & Nevada Silver Mining Co.

By the Court, Lewis, J. The defendants, who were erecting a quartz mill in the county of Lander, entered into a contract on the 10th day of March, a.d. 1867, with one Olen Hendrie, whereby for certain stipulated prices he agreed to deliver to them all the lumber and timber necessary for the purpose of completing the mill. To further the fulfillment of this contract, Hendrie employed the plaintiffs to supply his saw-mill with the necessary logs, and also to haul the timber when sawed into the proper dimensions, to the site of the defendants’ quartz mill. The defendants were in no wise connected with this arrangement, or contract between Hendrie and the plaintiffs. However, in a few days after the plaintiffs had commenced delivering the lumber to the defendant, G. P. Griffin, who seems to have been superintending the erection of the mill, wrote to the plaintiffs, informing them that there were thirty-nine sticks of timber ordered from Hendrie which had not been delivered, and that he was much in need of them, as the mill frame [83] could not be put up until they were received. This letter was answered by the plaintiff Rankin, who stated that the timbers needed were not to be had at the place where they were then engaged in cutting, and that he was not authorized by Mr .’/Hendrie to procure timber from any other locality; that he did not- feel warranted in going to Big Canon, where the timbers could be had, because it would be very expensive to Mr. Hendrie. The letter concludes with an offer to procure the sticks if Griffin would guarantee that the plaintiffs should be paid the extra expense incurred in getting them. It also appears from this letter that Hendrie was absent from the saw-mill at the time of this correspondence, and that the plaintiff Nixon was left in charge of his business, which probably accounts for Griffin’s writing to the plaintiff Rankin, instead of Hendrie. In reply' Griffin wrote the following letter: “ Go ahead with all possible speed in getting out the timbers. Put Horton and Hays on with you, and I will comply with your request as to pay.” The timbers were then procured and delivered at the proper place for the defendant; and this action is brought to recover the increased or extra expense incurred in getting them, which was proven to be about eight hundred dollars. The plaintiffs were nonsuited, and judgment for costs rendered against them, from which they appeal to this Court. The nonsuit was properly granted, and is sustainable upon two distinct grounds: First, upon the failure to show that Griffin entered into a contract on behalf of defendant; andj second, admitting him to have contracted on their behalf, it was not shown that he possessed the authority to bind them by any such contract. Language, although not a perfect medium of thought or intention, is yet the most perfect which we possess. Whenever it is employed in any legal instrument it must be taken as the expression of the real intention or thought of the person using it. If there be no ambiguity apparent, the words must be taken in their usual and ordinary signification, and the context interpreted in accordance with grammatical rules. When, therefore, a person has clearly expressed one thing in his contract, no Court has the right to say that something else was intended. No doubt an expression [84] Is often the very opposite of what is really intended, but that is a mishap which generally finds no remedy in the Courts. When the language employed is clear, or free from ambiguity, the Courts are bound by it, and cannot look beyond it for motives and intentions not expressed. To place the interpretation upon the correspondence between Griffin and the plaintiffs in this case, which counsel for appellants contend for,'would be to ignore entirely the language employed by the parties, and to make an entirely new contract for them. The plaintiffs write to Griffin that they would-procure certain timbers if he would guarantee the payment of the extra expense. Griffin replies, “ I will comply with your request as to pay.” The appellants did not ask the guarantee of the New England and Nevada Company, but simply for that of Griffin, and in his reply he does not pretend to represent any one but himself. He •does not say the New England and Nevada Company “ will comply with your request as to pay,” but I. will do so. We do not see how it is possible to interpret this language so as to make of it a contract obligatory upon the defendants. If the plaintiffs desired the guaranty of the defendants they certainly did not ask for it. Nor did Griffin by a single word indicate an intention to give it; hence these letters do not seem to warrant the construction placed upon them by counsel for appellants. But admitting that they do, the failure to prove, that Griffin had the authority to act for the defendants in such a transaction still remains an insuperable obstacle to the plaintiffs’ right of recovery. No man can be held upon a contract executed by another as agent until it is satisfactorily shown that he possessed the authority to act for the principal in that particular character of transaction. If it be shown that he is intrusted with general powers, he has all the implied powers which are within the scope of the employment; but if his powers are special and limited, the principal is not bound by any acts of the agent not strictly within the authority expressly conferred upon him. And the mere fact that a person has held himself out as the agent of another, and transacted business in his name, is no evidence of his agency unless it be further shown that he did so with the knowledge of the principal. [85] When, therefore, no express power of attorney is proven, but it is sought to establish the_ agent’s authority to do a particular act by proof of other acts done and recognized ,by the principal, such acts must either be of a character similar to that upon which it is sought to charge the principal, or tend to establish a general power. To illustrate: If the personal property of a person be sold by one claiming to act as the agent of the owner, and it becomes necessary to establish his power to do so, it might be done by proof, either of express authority or of other sales which had been recognized by the owner; but that he had at some time previous executed a promissory note as the agent of such owner, who had approved the act and paid the note, would be no evidence whatever of his right or authority to sell property. If such a great variety of acts can be shown as would reasonably lead to the belief that the agent is invested with general powers, it may be admissible to do so. But a few acts, and those, too, naturally belonging to one particular branch or character of business, would be no evidence whatever of the power to act beyond the scope of business to which such acts are naturally connected. In this case the plaintiffs sought to establish Griffin’s authority to enter into the contract sued on, on behalf of the defendants, by evidence that he employed men in the construction of the defendants’ mill and paid them for services so rendered; that he acted as foreman of the work on the mill, and in the absence of the managing agent acted as Superintendent. This certainly does not tend to establish the authority claimed for Griffin, for he may have had full power to employ workmen at the mill and to pay them for their services without possessing any authority whatever to purchase lumber, or to enter into contracts respecting it, on behalf of the defendants. As foreman at the mill he would not necessarily possess such power or right; at least, in the absence of proof, it cannot be presumed-that he did. The employment of men, the payment of their wages, and the management of affairs about the mill, were the only duties which, as foreman, seem to have been imposed upon him. That as foreman he had a right to contract on behalf of the defendants for timber is not in anywise shown. The evidence that he employed or paid the workmen on the mill [86] tended no more to establish his right to enter into a contract, like the one here involved, than the proof of the execution of the note would tend to establish the right to sell the property in the case supposed. Admitting Trefren’s authority to enter into a contract of this character on behalf of the defendants, and his right to delegate such power to another, still we have no evidence in the record that such power ever was given to Griffin by Trefren. The only testimony in any way bearing in that direction is the general statement of one or two witnesses that Griffin acted as Superintendent whilst Trefren was absent. By what authority he acted as such does not appear, or what authority was conferred upon him is nowhere shown. One of the witnesses also testified that one Cox acted in Trefren’s place whilst he was absent. Whether either of them acted for Trefren by his authority does not appear to have been proven. It is argued, however, that by the acceptance and use of the timber by the defendants they ratified the act of Griffin and are, therefore, liable for the extra cost of the lumber. But the answer to this position is, it was not shown that the defendants were cognizant of the transaction before the timbers were used. There could be no ratification by them without a full knowledge of the transaction, and after the timbers were used it was out of their power to return them. They had contracted with Hendrie for the. same kind of timbers, and if delivered by him in accordance with his contract they would he liable to him for their contract price. The evidence taken together rvould not support a verdict for the-plaintiffs.. The nonsuit was therefore properly granted. Judgment affirmed.