Jarvis v. Pague

WOOD, J., (after stating the facts). The court erred in its instructions to the jury. In Keith v. Herchberg Optical Co., 48 Ark. 138-145 (see, also, Liddell v. Sahline, 55 Ark. 627-29), the court said: “A special agency exists where there is a delegation of authority to do a single act. A general agent is where there is a delegation to do all acts connected with a particular business or employment.” In the recent case of Brown v. Gone, 130 Ark. 86, the facts were, that one Cone, living at Montrose, Arkansas, sent his agent, John Shaw, to Eudora, Arkansas, to sell a carload of mules for him. Shaw sold two mules to Brown for the sum of $300, and there was testimony which tended to prove that Shaw warranted the mules to be sound in every respect. There was also testimony tending to prove that the mules were unsound. Brown sued Cone setting up the warranty and alleging that the mules were unsound. Cone testified at the trial that Shaw did not have authority to warrant the soundness of the mules. The testimony tended to show that Cone was a dealer in mules and that Shaw was his general agent for the sale of them. After giving the definition of a general agent as above we said: “There is some conflict of authority in the decisions as to whether the general agent of a horse dealer has the implied authority to warrant the soundness of the horses intrusted to him for sale. We believe that 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 be acting within the scope of his authority.” The doctrine announced in the above case rules this. The testimony shows conclusively that P. Pague was the general agent of the appellee for the purpose of selling the animals in controversy. The authority of P. Pague, the general agent, could not be delegated by him to Williams, but it is unnecessary to determine whether the written contract in evidence was was binding on B. Pague, for the reason that the undisputed testimony of the appellee and his brother P. Pague showed that B. Pague was informed by his brother that he had entered into a contract with Williams whereby Williams was “to find buyers for the stock and make prices,” in other words to sell the stock,but that the money paid for the stock when sold was to be turned over to B. Pague. The uncontroverted evidence shows that B. Pague himself ratified the contract, as he understood it, whereby his brother acting as agent contracted with Williams to sell the animals in controversy, the understanding between them being that the proceeds of the sale should be paid to Pague. Giving appellee the benefit of the contract according to his own construction of it, it expressly authorized Williams to find buyers and fix prices for the animals. Williams and P. Pague had possession of the animals according to appellee’s own testimony for the purpose of making a sale of the same, but with the above limitations as to how the money should be paid. Now when one puts into the possession of his agent a drove of horses and sends him out clothed with authority to find buyers and fix prices on the same, in other words— to sell them, such express authority carries with it the apparent power to collect the proceeds of such sale. How else could he complete a sale. A buyer dealing with an agent vested with such express authority could not know of any secret limitations upon the agent’s power. The rule is, “a principal is bound by all that is done by his agent within the scope of his apparent power and can not avoid the consequences of his acts because no authority was in fact given to him to do them unless they were in excess of the apparent authority or were done under such circumstances as to put the persons dealing with him upon notice or inquiry as to his real authority.” 49 Ark. 320-23. The testimony does not disclose any circumstances which would put a person dealing with Williams on notice that Williams did not have apparent authority to sell the animals. In Rogers v. Scott, 128 Ark. 600-3, we said: “The general rule is that no man can get a title for personal property from a person who had no title to it. There are, however, certain exceptions to the general rule. One of these exceptions is, that, a bonafide purchaser will be protected where the owner has conferred upon the seller the apparent right of property as owner, or for disposal as his agent.” That principle is applicable to the facts which the testimony in this record tended to establish, and the court erred in not recognizing this in its charge to the jury. The rulings of the court upon the prayers for instructions set forth in the statement showed that the court ignored the doctrine of apparent authority as above announced. It follows that the court erred in granting appellee’s prayer for instruction No. 2 and in refusing to grant appellee’s prayer for instruction No. 1 and in modifying and giving as modified appellant’s prayer for instruction No. 6. Appellant’s prayer No. 6 as offered was a correct instruction of the written contract between P. Pague and Williams. We deem it unnecessary to discuss in detail the other rulings upon the instructions. What we have already announced will he sufficient to guide the court on a new trial. It is not improper to say, however, that we find no other errors in the rulings of the court. For those indicated, therefore, the judgment is reversed and the cause is remanded for a new trial.