Plankinton Packing Co. v. Berry

Kuhn, C. J. (after stating the facts). The appellant raises questions concerning the ruling of the court as to the admissibility of certain evidence. A part of the testimony in support of plaintiff’s case was taken by deposition, and it was sought to introduce in evidence two carbon copies of letters purporting to have been written by the plaintiff to the defendant asking for payment. The court properly refused to receive these two exhibits for the reason that they were not the best evidence) no showing having been made of any demand upon the defendant to produce the originals. Question is also raised concerning the refusal on the part of the court to admit plaintiff’s Exhibit D, which was a letter written by the plaintiff’s agent to his concern asking them to get a commercial report on Mrs. Berry and advising them that she was about to start in business. It is claimed that this exhibit should have been admitted for the purpose of showing to whom the plaintiff extended credit. We do not think it necessary to consider this question, because, under the undisputed proofs, the credit was extended by the plaintiff to the defendant. [216] This case was tried before the court, and the learned trial judge at the conclusion of the hearing made written findings of fact and of his conclusions of law. To these findings counsel for the plaintiff took exception that they were against the clear weight of the evidence, in accordance with the provisions of section 15, chap. 18, Act No. 314, Pub. Acts 1915 (judicature act, 3 Comp. Laws 1915, § 12587). In accordance with the provisions of that act, proper exceptions having been taken and error assigned thereon, we will review these findings. The judge made the following finding: “There is no evidence in this case of anything said or done by defendant, with knowledge on her part that plaintiff might be led to rely thereon, tending to show that Roy Berry had authority to buy any goods in her name or upon her credit.” With this conclusion we cannot agree, because we are of the opinion that this record discloses that the defendant, by her course of conduct, permitted it to appear that her son was her agent for the purpose of conducting this business, and, because of her conduct in relation thereto, she is estopped to deny such agency to the injury of the plaintiff, who in good faith and, as we believe, in the exercise of reasonable prudence, dealt with the agent on the faith of such appearances. The issuing by her of the blank checks over a period of several months, the receipt of letters from the meat packers, the knowledge that the checks were to be used, and were used, in the business of the meat market, and the failure of the defendant to examine the letters or the paid and canceled checks as returned to her by the bank, was such a course of conduct on her part, in our opinion, as to force the legal conclusion that her authority to her son to act for her as agent would be conclusively presumed so far as it may be necessary to protect the rights of the plaintiff, who [217] relied thereon in good faith and in the exercise of reasonable prudence. The general rule is thus stated by Mr. Mechem, in his work on Agency, Vol. 1 (2d Ed.), § 246, in discussing this question, where it is said: “Gathering together all of these elements, it may be stated as a general rule that whenever a person has held out another as his agent authorized to act for him in a given capacity, or has knowingly and without dissent permitted such other to act as his agent in that capacity, or where his habits and course of dealing have been such as to reasonably warrant the presumption that such other was his agent authorized to act in that capacity — whether it be in a single transaction or in a series of transactions — his authority to such other to so act for him in that capacity will be conclusively presumed to have been given, so far as it may be necessary to protect the rights of third persons who have relied thereon in good faith and in the exercise of reasonable prudence; and he will not be permitted to deny that such other was his agent authorized to do the act he assumed to do, provided that such act was within the real or apparent scope of the presumed authority.” The principle here involved was recognized by this court in the recent case of Pettinger v. Alpena Cedar Co., 175 Mich. 162 (141 N. W. 535), in which opinion the case of Clark v. Dillman, 108 Mich. 625 (66 N. W. 570), is referred to. See, also, the earlier case of Heyn v. O’Hagen, 60 Mich. 150 (26 N. W. 861). Upon this record the circuit judge should have entered a judgment for the plaintiff for the amount of its claim. The case will be reversed, and a new trial granted, with costs to the appellant. Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.