Cronk v. Mulvaney

Brooke, J. {after stating the facts). The first four assignments of error argued by defendant are based upon rulings of the trial judge, by which he permitted plaintiff to testify to what occurred between himself and Fred Mulvaney at the time the hay was divided. Earlier in the trial, plaintiff had testified, without objection, to the fact that his bargain had been made with defendant’s father, upon the father’s representation that he had a [349] power of attorney from his son, the defendant. We think the testimony was properly admitted. Agency in fact may he implied where one person by his conduct holds out another as his agent, and thereby invests him with apparent or ostensible authority as agent. 31 Cyc. p. 1219. 3 Current Law, p. 102. It is to be noted that the defendant did not deny that the arrangement had been made as claimed by plaintiff; indeed, Fred Mulvaney, who testified on behalf of defendant, said: “I think I made a bargain with the man, and I wanted to close the bargain all up with him and settle up my affairs with him before leaving; and I did take these matters all up, and talked it over about the share of the hay and dividing it.” Assignments of error 5, 6, 7, and 8 refer to rulings of the court admitting testimony as to what was said and done by defendant after suit was commenced. This testimony was admissible, as it tended to show acquiescence by the defendant in the acts of his father as his agent. Assignments of error 12 to 14, inclusive, relate to the admission of testimony as to usage or custom. The contract being silent upon the question of compensation for the service to be performed, evidence of custom or usage in that neighborhood was properly admitted. Beecher on Contracts, § 20, p. 45. The fifteenth assignment of error raises the question of the propriety of the remedy by replevin. Where crops or timber are severed from the realty, they become personal property, and one entitled to the possession thereof may have recourse to the action of replevin. Crapo v. Seybold, 36 Mich. 444; Spalding v. Archibald, 52 Mich. 365 (17 N. W. 940, 50 Am. Rep. 253); Sutherland v. Carter, 52 Mich. 151, 471 (17 N. W. 780, 18 N. W. 223); Antrim Iron Co. v. Anderson, 140 Mich. 702 (104 N. W. 319, 112 Am. St. Rep. 434). The judgment is affirmed. Moore, C. J., and Steers, McAlvay, and Bird, JJ., concurred.