Burden v. Robertson

HOUGH, Circuit Judge (after stating the facts as above). The problem at bar is one of sufficiency of proof. The plaintiffs have satisfied a jury that they did about $15,000 worth of work for somebody at the instance and request of Marvin; of course each of them declared. upon the “joint and several instance and request” of these plaintiffs in error and others. But the record yields not a scintilla of evidence that either of the plaintiffs knew any one else concerned with their employment other than Marvin and possibly, in the case of Mr. Thompson, Hull. So far as the parties appealing are concerned, any liability arising out of Marvin’s original employment of these plaintiffs depends wholly on the extent of Marvin’s authority in the premises. The actions are upon a promise and the burden of proof is on plaintiffs to prove the promise; and, when it comes to employing counsel, the whole case depends upon Marvin’s testimony as to what he said at the meeting of May 10th, viz. if he thought it necessary to employ counsel “to -obtain what I had gone after, that I should be permitted to do so; there was no objection to that.” This is the whole case for the promise, and, assuming now that it stands uneontradieted, was it enough to authorize the employment of two attorneys to bring a litigation of such expensive dimensions as is. shown by this record? If Marvin’s act in, employing the plaintiffs was not within the seope of his authority, no one but Marvin was pecuniarily responsible for the employment. This oft-used phrase, “seope of authority,” is not a term of legal art. The vital word of the phrase is seope, and that must be taken in its often varying sense. See a discussion of this subject in Fitzgerald v. Fitzgerald, 44 Neb. 463, 62 N. W. 899. By way of description, rather than definition, it may be said that acts within the scope of one’s authority means those proper for the accomplishment of the end in view, or such “as are usual in matters of this kind.” First Nat. Bank v. Nelson, 38 Ga. 391, 95 Am. Dec. 400. The sum of the matter is that each investigation of authority is a tub that must stand on its own bottom. Previous decisions are more or less illuminating guides; they are rarely precedents of law. Applying these considerations to the evidence herein, we find Marvin embarking upon litigation and employing counsel to bring it without asserting or pretending to have any evidence of authority to aet for others except the holding of proxies to vote at a shareholders’ meeting. The investigation is not widened by inquiring what was the apparent seope of Marvin’s authority, for the only thing that was apparent about him in Shreveport, beyond his physical presence, was the possession of these proxies; and it has not even been suggested that such possession gave him any authority whatever to employ counsel for the proxy giver. We think the fairest way of putting it is to inquire whether, if these plaintiffs, both lawyers of experience, had been told by Marvin exactly what he testified to below, they would have been justified in asserting, after Marvin had employed them, that every shareholder at the meeting of May 10th within the sound of Marvin’s voice had jointly and severally requested the services of Messrs. Robertson and Thompson to do what they proceeded to do. In our opinion the question answers itself. No reasonable man could have entertained such a belief. Marvin did not even testify that he was given authority. He only said that he ought to be permitted to employ counsel; and to infer an authorization to do what he did, from his further testimony that no one objected to what he thought he should be permitted to do, is beyond the bounds of law, and consequently beyond even the large powers of inference residing in a jury. The result is that, so far as any authority growing out of action or inaction at the meeting' of May 10th is concerned, there was no ease to go to the jury as to Burden and Putnam. The evidence is insufficient. And as to these defendants below the plaintiffs should have been nonsuited. Coughran v. Bigelow, 164 U. S. 301, 17 S. Ct. 117, 41 L. Ed. 442. As to Tobin, there was not enough evidence to go to the jury that he was present at the meeting of May 10th, and he was entitled to the same disposal of the ease as was accorded to several other defendants who did not-attend that fateful meeting. No one doubts that one may assume a contract which he' did not originally make, or accept the result of an act originally unauthorized; and, if he does this “with an intent to ratify, and with full knowledge of aE the material circumstances, [it] is a ratification.” Ansonia v. Cooper, [269] 64 Conn. 536, at 544, 30 A. 760, 762; cf. Merritt v. Bissell, 155 N. Y. 396, 50 N. E. 280. There is no evidence that Tobin either assumed or ratified Marvin’s undertakings with these plaintiffs, while, so far as Burden and Putnam are concerned, they at most listened to Marvin’s story on his return from Shreveport, and either stood mute or said in substance it was no concern of theirs. This constituted neither assumption nor ratification; they were under no obligation to say anything. Marvin had shot his bolt, and they did not choose to adopt Tobin’s style of comment. They assumed no legal obligation by their moderation. With respect to Jester and Navarro Company, we are of opinion that they did adopt and make their own the acts of Marvin in employing these plaintiffs. It is therefore ordered that in respect of Messrs. Burden, Putnam, and Tobin the judgment under review be reversed, with costs, and that as to Jester and Navarro Securities Company it be affirmed, also with costs.