Morris v. Friend

Smith, J., (after stating the facts). (1-2) It is insisted, in effect, that if there was any error in refusing the instruction numbered 2, that error was cured by the verdict of the jury. That this is true, because appellant testified that her husband had complete and unlimited control over the business of Morris & Company, and that she was, therefore, bound by his action in signing the notes. But however complete t¿e control of L. A. Morris over the business of Morris & Company may have been; there still remains the question of his right to bind her beyond the extent of the business which she was permitting him to manage. His right to bind her by the execution of notes would not arise out of the marital relation, and .could exist at all only by reason of authority expressly conferred, or necessarily implied, under an agency for her, and he would have no greater authority to bind her than any other agent having similar .authority would have had. And the rule as to any agent is that “an agent having general authority to manage his principal’s business, has, by virtue of his employment, no implied authority to bind his principal by making, accepting or endorsing negotiable paper. Such an authority must be expressly conferred or be necessarily implied from the peculiar circumstances of each particular case. It may undoubtedly be conferred and by implication, but it will not be presumed from the jnere appointment as general agent.” Mechera on Agency, § 398. See, also, 1 Am. & Eng. Enc. of Law, (2 ed), p. 1025; 31 Cyc. 1381, and.oases there cited. (3) In determining the extent of 'the authority ef L. A. Morris, the jury would have the right to consider the relationship between him and appellant, in connection with all other circumstances in proof; but the jury would have no right to infer this authority because of the marital relation. Hoffman v. McFadden, 56 Ark. 217. For the error in refusing to give instruction No. 2, the judgment will be reversed and the'cause remanded for a new trial.