Wales-Riggs Plantations v. Grooms

WOOD, J., (after stating the facts). The court erred in not granting appellant’s prayer for an instruction directing a verdict in its favor. The testimony did not raise an issue of fact to be determined by the jury, for it does not tend to prove that the act of Kepley in borrowing money from the appellee was in the scope of his authority as an employee of the appellant. Even giving the testimony its strongest probative force in favor of the appellee, it does not tend to prove that Kepley was the agent of the'appellant, clothed with authority, express, implied or apparent, to borrow money from the appellee with which to pay the expenses incident to the recovery of the possession of a mule that had escaped from appellant’s plantation. While there is some testimony tending to show that Kepley was entrusted by the appellant with a car load of mules, tools, etc., which were sent to cultivate the Riley place, owned by appellant in Cross County, Arkansas, this testimony does not tend to prove that Kepley had authority, express, implied or apparent, to follow one of these mules when the same had escaped from the plantation, for a distance of some ninety miles, and to institute replevin suit for the same and to incur expenses as the agent of the appellant in the recovery of its possession. It is not even shown by the appellee that Kepley represented himself as the appellant’s agent when he borrowed the money from the appellee; but even if Kepley had made such representations to the appellee, the appellant would not have been bound by them. The authority of the agent to bind his principal will not be presumed and can not be proved by the mere acts and declarations of the agent in assuming authority. The authority of an agent must be shown by positive proof or by circumstances that would justify the inference that the principal had assented to the acts of his agent. Daly v. Arkadelphia Milling Co., 126 Ark. 405; see, also, Wales-Riggs Plantations v. Dye, 105 Ark. 446. For the error in refusing to grant appellant’s prayer for an instruction directing the jury to return a verdict in its favor the judgment is reversed and the cause is dismissed.