Baker v. Seaweard

Opinion by Me. Chief Justice Eakin. Two principal, defenses are relied upon, namely, that Mickey, as agent for plaintiff, had authority to purchase the horses, and that plaintiff ratified said purchase. 1-3. We will first ascertain the law as to the agency, and who must determine the issues thereunder. It may be stated generally that a principal is not bound by the acts of his agent, unless within the real or apparent scope of the authority of such agent; and one dealing with an agent is bound, at his peril, to ascertain the extent of the agent’s authority, and is chargeable with knowledge thereof. Reid v. Alaska Packing Co., 47 Or. 215 (83 Pac. 139). And where a party relies upon a contract made with a person claiming to be an agent of another, he must prove, where the agency is disputed, that he was expressly empowered to make the contract, and that its terms were within the scope of his authority. Rumble v. Cummings, 52 Or. 203 (95 Pac. 1111). 4. The agency being proved or admitted, it is the duty of the court to determine whether or not the particular act of the agent relied on was within his authority. In the case of Wollenberg v. Sykes, 49 Or. 163, 169 (89 Pac. 148, 150), it is said: “The question whether or not Gingrich, as plaintiff’s architect, was his agent, and, as such, authorized to act, is not questioned, and, if it had been controverted, would have been a question to be submitted to the jury; but whether it was within the scope of his authority to procure or approve sureties on a bond, or undertaking, was a question for the court. * * The existence of an agent’s authority is one of the facts to be determined by the jury; but what acts come within the conferred power is a question of law for the court’s determination.” In Long Creek Building Association v. State Insurance Co., 29 Or. 576 (46 Pac. 366), [355] it is said that, while the existence of an agency is always a question of fact, what may be lawfully done thereunder is a question of law. Where the fact of the appointment and authority of an agent are not in controversy, it is the duty of the court to declare, as a matter of law, whether or not it empowers him to perform the particular act in question. See, also, Glenn v. Savage, 14 Or. 576 (13 Pac. 442) ; Rumble v. Cummings, 52 Or. 203 (95 Pac. 1111) ; Mahon v. Rankin, 54 Or. 342 (102 Pac. 608: 103 Pac. 53). 5. Here the agency is admitted by plaintiff, and there is no conflict in the evidence as to its extent. No witness testifies in regard to it but the plaintiff, and he says: “I gave him [Mickey] the privilege of paying those herders, paying for this grub, and any expense ordinarily for these sheep, and outside of that he had no right to give any checks; but one time there we thought about buying a bunch of lambs. I told him if we could get the lambs for a certain price he could take the lambs and pay $500 down, and he could go ahead and give a check.” There is no evidence of any other or further authority given to Mickey. 6. The principal is often bound by the acts of his agent in excess of his authority; but two important facts must be clearly established to create such a liability: (1) The principal must have held the agent out to the public in other instances as possessing sufficient authority to embrace the particular act in question, or knowingly have acquiesced in the agent’s assertion of the requisite authority; and (2) the party dealing with such agent must have had reason to believe, and must have believed, that the agent possessed the necessary authority. Justice Moore, in the case of Connell v. McLoughlin, 28 Or. 232 (42 Pac. 218), says these two facts must always be established to render the principal liable for the act of his agent in excess or abuse of his authority; for any person dealing with an agent does so at his peril. In [356] that case it was held that there was no evidence that the agent was held out as having authority to execute the note, and defendant’s liability was limited to the authority expressly given. In this case it would hardly be contended that plaintiff could have been held liable upon the note given, and the issuing of the check did not create any new or different liability upon plaintiff. Therefore the agency was not a disputed fact, and there was no evidence to support the allegation of the answer that plaintiff and Mickey were partners in the sheep; nor was there any question for the jury relating to the agency, or to its extent. It was for the court to decide whether the purchase of the horses by Mickey was within the authority of his agency. The defendant had no knowledge or information that Mickey had such authority, other than the representations of Mickey. In answer to the question, “What, if any representations, Mr. Sea-weard, did that gentleman [Mickey] make to you as to his being an agent or attorney in fact of R. E. Baker?” defendant answers: “Well, at the time he bought the horses, he said he was buying them for him and Baker.” Therefore it was error to submit to the jury the question whether the purchase of the horses was within the authority of the agency. 7. Neither was there any evidence that plaintiff held Mickey out as his agent with authority to buy horses, nor that the horses were used for plaintiff by Mickey after plaintiff was informed of the purchase; and the instructions submitting these questions to the jury were error. 8. The question of ratification was a proper one to be submitted to the jury, in so far as there was any evidence upon that question. For the errors herein indicated, the judgment will be reversed, and the cause remanded to the court below for such further proceedings as may be proper, and not inconsistent with this opinion. Reversed.