Ames v. D. J. Murray Manufacturing Co.

Maeshall, J. There is abundant evidence to sustain what we must assume the jury decided, as to Burrows being the general agent of appellant in charge of constructing the mill. As such agent he had authority to bind his principal respect to all the usual means of carrying out the work under his charge. To that extent he possessed the same authority as his principal. Roche v. Pennington, 90 Wis. 107, 62 N. W. 946. The learned circuit court, by the charge to the jury, decided that the making of such a contract as that testified to by respondent, a contract to work through the entire time of installing the mill, was within the general scope of a superintending agent’s authority as a matter of law, and that evidence that the custom in doing such work was not to make such contracts had no bearing on the question of the agent’s authority. That is clearly erroneous. It is by no means clear that, as a matter of law, the foreman in charge of constructing a mill possesses, by implication, authority to employ laborers upon the work, binding his principal to give them employment till the completion thereof. We are in88 dined to say that there is at least room for conflicting inferences in respect to the matter; that the burden of proving that such an agent has such authority is upon the party relying thereon to make out his cause of action; that in this case such burden was on the plaintiff. He should have produced some evidence, it seems, in regard to the matter, and if, on the case made by the whole evidence, the fact involved was left in reasonable doubt, that doubt should have been solved by the jury under proper instructions. Plaintiff did not pro-ducé any evidence on the subject at all, while there was considerable evidence on the part of defendant that the universal custom in doing mill work was not to engage employees for any definite time. In that situation the court should have taken the case from the jury by directing a verdict in favor of appellant. The learned court clearly misconceived the office of evidence, in a case like this, to prove what is customary in respect to the manner of conducting the work. Its office is not to show what the agent did in the course of his agency, but what was within the scope of his authority to do. This court has several times passed upon that question. Pickert v. Marston, 68 Wis. 467, 32 N. W. 550; Larson v. Aultman & T. Co. 86 Wis. 281, 56 N. W. 915; Roche v. Pennington, supra. Eor error of the court in disregarding that rule the judgment must be reversed. By the Court. — The judgment is reversed, and the cause remanded for a new trial.