Foye Tie & Timber Co. v. Nicholas

Ethridge, J., delivered the opinion of the court. Appellant was defendant below and appellee was plaintiff. The plaintiff brought suit for four hundred and seventy-five dollars on cross-ties sold to appellant through its agent, Williams. The number and price of said ties are set forth in the declaration. The defendant pleaded the general issue. The testimony for the plaintiff was that he sold to Williams as agent for the appellant the ties sued for in the declaration; that the original contract between him and Williams was made in January, and that Williams agreed to take all the ides that plaintiff would place for him at Clieraw, Miss.; that on the 8th day of February the appellant, through its agent, loaded one car of said ties, taking the ties of larger dimension, 7x8 and 7x9, and leaving the ties of smaller dimension, and that the plaintiff protested against his tailing the larger ties and leaving the smaller ones, and that appellant’s purchasing agent told him he would take all of the ties, but that as a favor to his company he wanted to take up the larger ties that week, and for the appellee to procure cars and that he would come back the following week and take up the smaller ties; that he did so procure the cars, but appellant failed to take them up, but promised to take them up at a subsequent date; and that he agreed on two or three different occasions to take up such ties and directed the plaintiff to get cars for each of said dates, which he did, and on which cars he was compelled to pay demurrage, because of the failure of appellant to take up the ties. Finally appellant, through its agent, refused .to take up other ties, and consequently the plaintiff brought this suit, being unable to sell the ties to other persons, except a small number which were sold and the purchase price credited on the contract price. The appellant’,S agent, Williams, denied the agreement and testified that he made no trade for any ties for the appellant other than the carload mentioned which constituted a single transaction. He further testified that he had no authority to [714] buy ties for the appellant for future delivery. The manager of the appellant company in charge of its busin'ess at Mobile, Ala., testified that Williams had no authority to buy ties for future delivery. The testimony of this witness with reference to the power of the agent, Williams, is as follows: “Q. Who was in charge of the purchasing of ties in the territory included in Marion county? A. Mr. E. B. Williams. Q. Under whose authority was that conducted? A. Under the authority of our Mobile office. Q. Tell whether or not Mr. Williams had any authority to make contracts for the future delivery of ties? A. He did not. Q. What was his authority? A. His authority was to buy ties from time to time by the prices that we furnished him from our office and to pay for them by signed draft and see that they were loaded on the cars.” Plaintiff introduced other witnesses to show that Williams was buying ties for the appellant and to prove that he offered to purchase from such witness ties to be taken up at later dates, and to prove statements by Williams that he had employed Mr. Nicholas to buy ties for the company. This testimony was objected to by the appellant. The plaintiff requested and was given the following instruction : “The court instructs the jury for the plaintiff that if you shall believe from a preponderance of the evidence in this case that plaintiff made the contract testified to by him with Williams, and that defendant knew that such contract had been made, or knew that Williams, representing them, was making similar contracts with other persons, in his (Williams’) territory or the communities where Williams bought ties for defendant, and accepted the benefits of such contract Avith plaintiff, if any you believe there was, and did not repudiate such contract, but permitted Williams to remain in said territory, making similar contracts, then defendant is bound by the contract, if any made, even though you may not believe that Williams had specific authority to make such contract.” [715] There is no proof to show that Williams had authority from the company to buy ties from other people for future delivery, nor that there # was any notice to the company that he was making such contracts and paying for such ties contrary to his authority. We think the case should have been tried upon the testimony of Nicholas and that of the defendant, unless there was testimony that the company had notice that he was making contracts in violation of his authority and with such knowledge accepted and paid for such ties. For the giving of this instruction the cage will he reversed and the cause remanded. Reversed and remanded.