Pope v. Lowitz

Bailey, J. The assignments of error in this case which principally claim our attention are those which relate to the instructions given to the jury at the instance of the plaintiff. As to many of the facts in the case there is no serious controversy. Thus, it is not disputed that the defendants employed Bullock as their agent, and authorized him to take charge of various matters pertaining to their business. Hor is it disputed that while he was acting as agent for the defendants he borrowed of the plaintiff the money in controversy, and executed to him, in the name of the defendants, the promissory note and order which the plaintiff now holds. The main controversy relates to the nature and extent of Bullock’s authority as agent, the question being whether he was authorized by the defendants to borrow said money and execute and deliver said note and order as security therefor. The plaintiff’s first instruction enumerates a large number of facts bearing more or less directly upon the nature and scope of said agency, and then tells the jury that if they find said facts from the evidence, tlien, whatever Bullock thereafter did within the scope of his authority was binding on the defendants. One objection to the instruction is, that some at least of the facts which the jury are thus directed to consider, have no basis in the evidence. For instance, the jury are directed to find whether Bullock, after his employment, was appointed by the defendants to be foreman of their store and business. We find no evidence in the record tending to show such appointment. The utmost that can be said is, that there is evidence tending to show the employment of Bullock by the defendants as their general agent in some particular matters pertaining to their business, but it nowhere appears that he was appointed foreman of their business generally. Thus, the evidence tends to show that he was their agent or representative in their dealings with the county of Cook, both in the negotiation of contracts, and in carrying such contracts out and doing all business in connection therewith. These Cook county contracts, however, or rather the one contract which the defendants are shown to have obtained from the county, constituted but a small portion of the aggregate business of the defendants. The position of foreman of their business generally was one importing more ample power and authority than that of genei’al agent in respect to a particular matter or in the performance of a particular conti’act. The instruction further required the jury to find whether the defendants or either of them introduced or represented Bullock to Filkins, the clerk of the board of county commissioners, as a representative of, or as interested in, the business of the defendants’ firm. There is no evidence that the defendants intx’oduced Bullock to Filkins as interested in the business of their firm, or that they made any representations to Filkins that he had any such interest. The defendants testify that all that passed between them and Filkins in relation to the character and extent of Bullock’s authority was, that they answered in the negative a question put to them by Filkins as to whether Bullock was their partner. Filkins, on the other hand, testifies that both the defendants told him that Bullock was authorized to act for them in every particular in securing the contract and in carrying it out, and in doing all things in connection with it, but he does not pretend that they told him that Bullock had any interest in their business. Having an interest in the defendants’ business might well have imported to the minds of the jury the relation of partner, a relation which, if it had existed, would of itself have conferred upon Bullock authority to box'row the money in question for his firm and execute on their behalf commercial paper for its security. The court, by submitting these questions of fact to the jux’y, impliedly assured them that there was evidence tending to prove the facts so submitted. The instruction is also erroneous in calling the attention of the jury especially to certain portions of the evidence beai'ing upon the question of the scope of Bullock’s agency, thus giving them undue prominence, and omitting other facts in evidence bearing upon the same question. It is like saying to the jury, “ In determining the scope of Bullock’s agency, these are the facts you are to consider.” But there is a still more serious difficulty with the instruction. It is wholly illogical and inconsequential. It requires the jurv to find as to certain facts, and then, instead of instructing them as to the legal consequences of such facts as found, announces a proposition of law which in no way follows as a consequence of the finding, but which is equally true and equally applicable to the case, whichever way the facts submitted are determined. The material question is as to the scope of Bullock’s agency, but instead of submitting that question to the jury to be determined either from direct proof or as an inference from other evidential facts, it merely requires them to find certain facts from which inferences, either of fact or of law as to the scope of said agency, might have been drawn, but wholly fails to tell them what inferences would be proper, or what the force or effect or use of the facts, if found, would be in determining the issues in thecase. It thus merely submits to the jury certain facts which of themselves and apart from the inferences properly dedueible therefrom are unimportant; and follows with the legal truism that, whatever the agent did within the scope of his authority was binding on his principals. Such an instruction, instead of aiding the jury in the determination of the issues, could only have had a tendency to confuse and mislead them. The second instruction told the jury, in substance, that if the defendants instructed or directed Bullock to aid them in procuring money in advance of its payment by the county, and did not limit his authority, but left him free to do whatever appeared to him in his discretion to be necessary or proper to do to obtain the money, and sent him, or knowingly permitted him to go to Filkins for that purpose, without expressing or indicating to Filkins what were the limits of his authority, or whether he was limited at all as to the number of orders he might draw, or as to the amount of money he might obtain, or the use he was to make of the orders in getting them cashed, then in law he was the authorized agent of the defendants to do whatever was necessary or proper to be done with such orders to procure the money thereon for his principals, and they are bound by his acts, so far as he acted within the scope of his authority. As Bullock himself was not a witness, the only evidence of the facts treated of in this instruction is to be found in the testimony of the defendants. Patten testifies that shortly after handing in the schedule for their first estimate, Bullock told him that there was a custom at the county offices of allowing drafts to be made against the anticipated estimates in such form as to be available at the bank; that Patten told him to go and find out what the custom was, and he thereupon went and procured two blank orders of the form used by the county offices for that purpose. These were orders on Filkins, as clerk of the county board, payable out of the estimates, and authorizing the holder to receipt to the county therefor. These blanks were both filled up by Patten for the same sum, viz: $3,000, and signed with his firm name, Bullock telling him that one was to be filed with the county treasurer as his guide in paying the estimate, the other to be retained by the defendants. Patten then delivered both of said papers to Bullock to take to Filkins to get his acceptance and one of them was afterward returned to Patten duly accepted by Filkins. This order was subsequently negotiated by Patten at the defendants’ bank. It does not appear that the defendants ever employed or directed Bullock to assist them in obtaining money or orders of this character, or that they sent him to Filkins for that purpose, on any other occasion or in any other way, nor does it appear that they had any knowledge of his going to Filkins at any other time on that business, or of his drawing or negotiating or attempting to negotiate any other orders whatever. Such being the facts presented by the record, it is manifest that the foregoing instruction is a mere perversion of the evidence. It not only directs the jury to find upon facts of which there is no evidence, but authorizes inferences from those facts of which the record furnishes no warrant. The fourth instruction requires the jury, among other things, to find whether the defendants, knowingly permitted Bullock to draw the order in controversy, or to draw and negotiate orders generally for money in advance of the architect’s estimates. There is no evidence that the defendants had any knowledge whatever of the fact that Bullock had drawn or negotiated the order in question until a considerable time afterward, nor do we find any evidence of their knowledge of his drawing or negotiating any other orders of the same character, and much less do we find evidence of the defendants knowingly permitting him to draw or negotiate such orders. The instruction to this extent has no evidence to support it, and is therefore erroneous. The fifth instruction holds, that even if Bullock was not authorized to draw or negotiate the order in question, yet if he did so, and paid over to the defendants a portion of the money which he obtained on it, and that they received it, and used it in their business with knowledge as to how it was procured, they are liable for the full amount of the money lent on the order. The sixth instruction goes further, and holds that even if the defendants, at the time they received a part of said money, did not know the source from which Bullock obtained it, but afterward ascertained that it came from the plaintiff, then it was the duty of the defendants, if they wished to repudiate Bullock’s authority to borrow it, to refund the money to the plaintiff, and that by keeping it they ratified Bullock’s authority, and are estopped from denying it. Had there been evidence tending to show that a portion of the money obtained by Bullock from the plaintiff was paid over to the defendants, and that they received and retained it, knowing at the time the source from which, and the circumstances under which, Bullock obtained it, the proposition of law announced in the fifth instruction would doubtless be correct. Such acts on the part of the defendants would be a ratification of the unauthorized act of their agent. But we are unable to find any evidence in the record tending to show such knowledge on their part. On the day the loan was obtained, Bullock paid the defendants $1,000, representing to them that it was money collected by him from the county, being the sum previously withheld by the county officers, and there is no evidence that the defendants had any knowledge that the representation was untrue. And we find no evidence,, apart from the mere coincidence in dates, that said money was in fact a part of the money borrowed from the plaintiff. The extract from the defendants’ counsel’s opening address to the jury, embodied in the bill of exceptions, in which he admitted that it might be a part of the money borrowed, if to be regarded as legitimate evidence at all, neither proves nor tends to prove that it was so in fact. But the proposition laid down in the sixth instruction is, we think, clearly erroneous. Prior to the date of the loan from the plaintiff, Bullock had collected from the county $1,000 of the defendants’ money which he had failed to account for to them, and for which he was owing them. The money obtained by Bullock from the plaintiff, if paid to the defendants at all, was paid in satisfaction of that indebtedness, and was received and applied by the defendants on the supposition that it came from the county and was their money. As between them and Bullock, it belonged to them, and they had a right to retain it. Did their learning some time afterward that Bullock, wrongfully assuming to act as their agent, had in fact borrowed it from the plaintiff, make it their duty to refund the money to the plaintiff under penalty of being deemed in law to have ratified the unauthorized act of Bullock so as to become liable for the entire loan? This question is satisfactorily answered by the case of Spooner v. Thompson, 18 Vt. 259. There an agent employed to buy goods for a principal, and to sell them at the principal’s store, borrowed some money on the credit of the principal, without authority, and put into the principal’s business, without the knowledge of the latter; it was held that the principal was not liable therefor to the person from whom it was borrowed, in the absence of a promise to pay, the court citing and applying the maxim that a party can not be made the debtor of another without his own consent. The case of Thatcher v. Pray, 113 Mass. 291, is also in point. There the plaintiff left a horse in the custody of one Gray to be kept for him through the winter, but gave him no authority to sell it. Gray afterward sold the horse to the defendant, and received in payment therefor a check which he indorsed and delivered to the plaintiff in payment of a debt which he owed him, and the plaintiff, in ignorance of the sale, collected the.' check, and applied the proceeds to the payment of the debt. In an action to recover the value of the horse, it was held! that the plaintiff’s receipt and collection of the check was not\ a ratification of the sale, and that he had a right to receive : and appropriate the check to the extinguishment of the debt in payment of which it was given to him. Other questions are raised by counsel which we do not deem it necessary to consider, but for the error in the instructions above pointed out, the judgment will be reversed and the cause remanded. Judgment reversed.