Ward v. Dunnebecke

Brooke, C. J. This case was started in the justice’s court. The plaintiff, a contractor, was requested by one Petrie, son-in-law of Anthony Dunnebecke, deceased, to look at some work. He arrived at an agreement with Petrie for the construction of a cement walk, the contract price of which was to be $80. Plaintiff did some preliminary work, but cold weather set in, and he had to discontinue the work for a period of about three weeks. In the meantime, Petrie had the work finished by another contractor. The walks in question were constructed in front of the residence of Dunnebecke. During the time of the preliminary work the deceased was very ill at his home. Testimony was introduced, however, showing that deceased was able on a few occasions to see the work in progress. After the work was completed by the second contractor, plaintiff brought this action against the estate of Anthony Dunnebecke for the original [705] contract price. The defendant pleaded the general issue and gave notice of set-off and recoupment for 680 feet of sidewalk amounting to $74.80. The justice of the peace rendered a judgment in favor of plaintiff for the entire sum with costs. On appeal to the circuit court, the judge directed a verdict for defendant of no cause of action, and awarded defendant costs. The only question in this case to be determined is whether Petrie was the authorized agent of Dunnebecke in this transaction. The evidence contained in the record shows that Dunnebecke and Petrie lived side by side. Petrie testified that he had never been authorized by the deceased to make a contract for the construction of this walk. The only point on which plaintiff can rely that the deceased authorized Petrie to have the walk constructed is that the deceased did nothing to prevent the performance thereof, and that his failure to do any act to prevent the work impliedly ratified the acts of Petrie. It is elementary that the authority of one person to contract for another cannot be proven by the declarations or admissions of an alleged agent. Bacon v. Johnson, 56 Mich. 182 (22 N. W. 276); Ironwood Store Co. v. Harrison, 75 Mich. 197 (42 N. W. 808); Swanstrom v. Improvement Co., 91 Mich. 367 (51 N. W. 941); Fontaine, etc., Electrical Co. v. Rauch, 117 Mich. 401 (75 N. W. 1063); Coldwater National Bank v. Buggie, 117 Mich. 416 (75 N. W. 1057); and Gore v. Assurance Co., 119 Mich. 136 (77 N. W. 650). The authority of an agent must be determined by the acts of the principal, and not by those of the agent. Wierman v. Sugar Co., 142 Mich. 422 (106 N. W. 75). The judgment is affirmed. McAlvay, Kuhn, Stone, Ostrander, Bird, Moore, and Stbere, JJ., concurred.