Brown v. Cone

HART, J., (after stating the facts). The court directed a verdict for the defendants on the ground that Shaw had no authority, real or apparent, to warrant the soundness of the mules. Counsel for the defendants seek to uphold the verdict.on the authority of United States Bedding Co. v. Andre, 105 Ark. 111. In that case the court held that a traveling salesman has no implied authority to enter into a contract for advertising his principal’s business in a newspaper or upon billboards. The court held that to justify an implication of authority in an agent, it must appear that the act of the agent was necessary in order to promote the duty or carry out the purpose expressly delegated to him. The court said: “An agent has authority to do all that he is expressly directed to do; and he also has implied authority to act in accordance with the custom or usage of the business which he is employed to transact and to do what is reasonably necessary to accomplish that which he is directed to do. ’ ’ We do not think that case controls here. There the agent was a traveling salesman, who was authorized to solicit orders for and make sales of the goods of his principal. The company sent out large- printed advertisements with the goods which could be placed on billboards. The agent made a contract with a person to post these advertisements on his billboard. He had no authority to make such a contract, and the court properly held that his act was beyond the apparent scope of his authority. In Oak Leaf Mill Co. v. Cooper, 103 Ark. 79, in an opinion delivered by the same judge who wrote the opinion in the case just cited, the court held that a principal is not only bound by the acts of his general agent, done under express authority, but he is also bound by all acts of such agent which are within the apparent scope of his authority, whether authorized by the principal or not. The court said that a principal is not only bound by the authority actually given to the general agent, but by the authority which the person dealing with him has a right to believe has been given to him. In Keith v. Herschberg Optical Co., 48 Ark. 138, the court said that a general agency is where there is a delegation to do all acts connected with a particular business or employment. There is some conflict of authority in the decisions as to whether the general agent of a horse dealer lias the implied authority to warrant the soundness of the horses intrusted to him for sale. 31 Cyc. 1354. We believe the better reasoning is that he has such power. The underlying principle is that the agent being in charge of the sale of the horses is intrusted with all powers proper for making the sale, and that a warranty of quality and soundness is usually necessary for the proper performance of that power. Cone was a dealer in horses and shipped them out to nearby towns in carload lots in charge of Shaw to sell them. Shaw had full power to control the terms of sale. This included power to do everything usual and necessary to its accomplishment. It is perfectly evident that Shaw would be very much hampered in the sale of the horses if he did not have the power to warrant their soundness. Shaw was in charge of the business of selling the horses for Cone, and when he warranted the soundness of a horse sold by him, he may be fairly presumed to he acting within the scope of his authority. Belmont’s Executor v. Talbot (Court of Appeals of Kentucky), 51 S. W. 588; Skinner v. Gunn, 9 Porter (Ala.) 305; Lane v. Dudley (N. C.), 5 Am. Dec. 523. It follows that the court erred in directing a verdict for the defendants, and for that error the judgment will' be reversed and the cause remanded for a new trial.