Roche v. Pennington

Putney, J. 1. There was, we think, sufficient evidence,, when the plaintiff rested, to go to the jury to show that the-contract relied on, and found by the jury to have been made,, was presumptively within the authority of the agent, Harper. The evidence tended to show that he was the general agent of the defendants in charge of and conducting their mill. The presumption is that he possessed the powers usual [111] and reasonably necessary to discharge the duties and carry on the business confided to him, such as are usually exercised by other similar agents under like circumstances. It-was necessary to have some one as foreman and filer. What was a usual or reasonable contract in such a case, — there being no well-understood usage of which the court could take notice,— was a question of fact for the jury. Mechem,, Agency, § 285; Pickert v. Marston, 68 Wis. 467. Rut whatever defects may have existed in the plaintiffs' case when the motion for a nonsuit was denied were supplied by subsequent proof (Harriman v. Queen Ins. Co. 49 Wis. 73); for it was shown that Harper was the general manager of the defendants, and one of the defendants testified that Harper “ had charge there of all matters in relation to the mill; hired the men and discharged them. Mr. Harper ran the entire thing.” He had, beyond question, authority to contract for the services of the plaintiff as foreman and filer. He made the contract in question after representations of the plaintiff, and references given him, as to his competency, and which, to some extent, Harper investigated. Was it beyond his authority, as a matter of law, to make the contract, because he agreed, under the-circumstances stated, to take the risk of the plaintiff’s competency to fill the position during one year,— the term of his employment? We think not. Harper stood for and in the place of the defendants, and must be held to have had a liberal and reasonable discretion as to the terms of the contract. The agency was a general one, and included all the-necessary and usual means of executing it with effect; and,, in the absence of any proof of usage, Harper had authority to make such contract with the plaintiff as, in the honest exercise of his discretion, he saw fit. Story, Agency, § 58,. and note 2; Id. § 106. Appropriate and reasonable- contracts were within the scope of his authority. “ In general terms, it may be said that such an agent has implied power [112] to do those things which are necessary and proper to be done in carrying ont the business in its usual and accustomed way, and which the principal could and would usually do in like cases if present. Mechera, Agency, § 395; Cannon v. Henry, 78 Wis. 167; Shelton v. Merchants’ D. T. Co. 59 N. Y. 262; Nelson v. Hudson R. R. Co. 48 N. Y. 498; Williams v. Getty, 72 Am. Dec. 758. We cannot say that in making the contract he exceeded the usual authority of general managers under similar circumstances. The strong presumption is that the contract was within, and not without, Ms authority. The burden of showing, in such a case as this, that the contract was unusual and unreasonable and was not within the authority of the general agent, was on the defendants. If there was an invariable, certain, and general usage on the subject of making such contracts, the law would imply that it should be observed; but, to be binding, it must be uniform and universal. 1 Am. & Eng. Ency. of Law, 354. Upon the question of what is usual .and reasonable under such circumstances, the case is wholly destitute of proof. Eor these reasons, we think the instructions of the court to the jury were rightly given. Error was assigned upon the alleged refusal of the court to give two instructions to the jury at the request of the defendants, but the record fails to show that any such instructions were requested. The objection that the obligation, if :any, created by the agreement to take the risk of the plaintiff’s competency, was personal to Harper and did not bind .the defendants, by reason of the form of expression used, is without merit. Harper was acting, as was well understood, in a representative capacity and as the general manager of the defendants in making the contract. 2. The court properly excluded the question put to one of the defendants as to Harper’s authority to make contracts. It was clearly leading, and, besides, instead of calling for facts, it propounded to the witness a mere question of law. [113] 3.' The jury found, a general verdict for the plaintiff, and •answered the question whether such a contract as that testified to hy the plaintiff was entered into between him and' Harper, acting as agent for the defendants, in the affirmative. This rendered an answer to the second question wholly immaterial and unnecessary. 4. The remark made hy counsel for the plaintiff in his address to the jury, and which was objected to, was rightly held by the court to be improper, and counsel thereupon withdrew it. "We do not think that there is any reason to believe that it operated to the prejudice of the defendants, and the incident furnishes no ground for a reversal of the judgment. Smith v. Nippert, 79 Wis. 139; Dugan v. C., St. P., M. & O. R. Co. 85 Wis. 609. It follows from these views that, inasmuch as there was sufficient evidence to sustain the verdict, the motion for a new trial was rightly denied, and judgment was properly given for the plaintiff. By the Court.— The judgment of the circuit court is affirmed.