Grover & Baker Sewing Machine Co. v. Polhemus

Graves, J: The circuit court adjudged the plaintiff in error liable to defendants in error in a suit on the common counts for ■ horse keeping and livery hire, and error is alleged. The company, through, their general agent, E. A. Van Burén, bargained with one Wissler to sell their sewing machines in Washtenaw county and vicinity, on the following understanding: they were to provide him a room in Ann Arbor, a horse and buggy and the machines, and he was to sell the machines and have thirty per cent, commission as compensation. The room and horse and buggy were provided, and machines as needed were supplied, and he prosecuted the business for some time under the arrangement. He called on defendants in error and contracted with them specially to board the horse,' and they did so for several months and sometimes used the animal with his assent. He also got livery of them at various times. He informed them in the beginning that the company owned the horse. They charged the entire account for horse keeping and livery directly against him, and he paid them the larger portion of it. The recovery allowed against the company was for the balance of this entire account. As their witness, he swore that if he had paid it he would not have been entitled to ask the company to reimburse him. According to the record there was not the least ground for claiming that he had authority to get the horse boarded or obtain livery on the credit of the [249] company, or that the co.mpany held him out as having such power, or ever assumed in any form the liability therefor, or did any thing to make the liability their own. Moreover there would seem to have been no proper evidence that he contracted on company account, or any lawful evidence legitimately tending to show that defendants in error gave credit to any body except Wissler. Some evidence was admitted that when he called to get the horse boarded he stated it was for the company. But he could not invest himself with authority to bind the company by such statements. Were the rule otherwise, the fortune of every man would rest on the veracity of his errand boy. The arrangement made with him by the company gave him no such power, and his position did not imply it, and there was no evidence the company contributed in any manner to produce an impression that he possessed it. Besides, as before intimated, the evidence is not subject to be construed as showing that the dealings between him and defendants in error were had upon the faith of any power or intention to make the company a party to them. On' request of defendants in error the judge charged, among other things, that if the jury should find the defendant corporation derived benefit from the use of the horse and wagon in selling machines, then the corporation would be liable. This was clearly wrong. In the first place part of the entire claim was for livery hire and had no connection whatever with any benefit the company may have obtained from the use of their horse in the business of selling their machines; but, second, their responsibility for the board furnished to the horse at Wissler’s instance in no way depended upon their being benefited by such use of the horse as may have occurred in selling machines. Wissler seems to have been a bailee of the horse subject to an obligation to take care of him, and the fact that his employment by the bailee may have produced profit to the bailor could not make the latter liable to defendants in error for the board of the horse they saw fit to provide at the bailee’s request. In [250] short, if there was any ground whatever for fixing the company with a liability it must have been a very different one. There are- several other exceptions in the record, but some of them have no merit, and the others do not require notice now. The judgment should be reversed, with costs, and a new ■trial ordered. The other Justices concurred.