Simmons Motor Co. v. Dudley

Mr. Justice Carnes delivered the opinion of the court. 4. Principal agent, § 245*—when question whether defendant in buying from agent exercised prudence to ascertain authority for jury. In an action of replevin to recover possession of an automobile alleged to have been sold to defendant by an agent of plaintiff who had no authority to make such sale, the question whether defendant in dealing with such agent exercised ordinary prudence and reasonable diligence is a question of fact to be determined by the jury. 5. Principal and agent," § 245*—when question whether sale by agent was of such unusual character as to put prudent person on guard for jury. In an action of replevin to recover possession of an automobile alleged to have been sold to defendant by an agent of •'plaintiff, who had no authority to make such sale, the question whether the transaction between defendant and such agent was of such an unusual and improbable character as to put an ordinarily prudent man on his guard is a question of fact to be determined by the jury. 6. Principal and agent—when evidence sufficient to sustain finding that purchaser from agent acted with prudence. In an action of replevin to recover possession of an automobile alleged to have been sold to defendant by an agent of plaintiff who had no authority to make such sale, evidence held to show that defendant acted with ordinary prudence and reasonable diligence although she did not investigate to ascertain whether such agent had such authority, he having the automobile in his possession at the time of sale, and it appearing that such agent called on defendant’s employer in answer to a letter to plaintiff in regard to such automobile, and there being no facts of a suspicious, unreasonable unusual or improbable character in regard to the transaction which ought to have put defendant on inquiry. 7. Principal and agent, § 102*—when purchaser from agent not-negligent in failing to ascertain want of authority of agent. Where an agent who has no authority to sell an automobile which is in his possession offers it for sale to one who does not buy it, but the automobile is finally sold to one who acts on the information as to the authority of the agent which was possessed by the person to whom the automobile was first offered, such person cannot' be held negligent in not ascertaining the fact of such agent’s want of authority to make the sale if the person to whom it was first offered would not have been held negligent had he purchased the car without ascertaining such fact. 8. Principal and agent—when evidence sufficient to sustain finding that ordinarily prudent person would have made check for purchase payable to agent. In an action of replevin to recover possession of an automobile alleged to have been sold to defendant by an agent of plaintiff, who had no authority to make such sale, where defendant, a stenographer, paid such agent the purchase price thereof in money and drafts payable to the order of such agent, held that there was no reason for disturbing a verdict for defendant in so far as it rested on a finding that an ordinary prudent man would have paid for the automobile in the way in which defendant paid, instead of drawing a check payable to the order of the principal as a careful business man would have done. 9. Principal and agent, § 131*—when payment to agent talcing order invalid. Payment for goods ordered on future shipment is not valid as against the principal when made to a traveling salesman who takes orders for such goods. 10. Principal and agent, § 131*—when agent implied authority to receive payment. Generally an agent in possession of goods has an implied authority to receive payment therefor when sold by him. 11. Principal and agent, § 103*—when purchaser charged, with notice as to lack of authority of agent. One dealing with an agent selling goods by sample is charged with notice that samples are not generally placed in the hands of the agent for sale. 12. Principal and agent, § 165*—when principal estopped to deny lack of authority of agent to sell. Although .an agent cannot usually bind his principal beyond his authority, yet where the true owner of property holds out, or allows another to appear as being the owner or as having full power of disposition of the property whereby innocent third parties are led into dealing with such apparent owner, such third parties will be protected if they buy such property from such supposed owner, their rights in such case depending not on the actual title or authority of the person with whom they deal directly, but on the act of the owner which precludes him from disputing, as against such third parties, the existence of the title or power with which he has caused or allowed the party making the conveyance to appear to be invested. 13. Trial, § 150*—when question of fact arises for fury. Although in the trial of an action there is no dispute as to what the parties actually said and did in the transaction which gave rise to the action, yet where there are conclusions of fact to be drawn from the admitted facts there are still questions for the jury to determine, so that in such case it is not merely a question of applying the law to the facts. 14. Trial, § 191*—when evidence not sufficient to warrant direction of verdict. In an action of replevin to recover possession of an automobile alleged to have been sold to defendant by an agent of plaintiff, who had no authority to make the sale, evidence held not sufficiently clear to warrant the direction of a verdict, although' there was no dispute as to what the parties actually said and did in the transaction on which the action was founded. 15. Replevin, § 123*—when verdict not so clearly against tveight of evidence as to indicate bias. In an action of replevin by a nonresident corporation to recover possession of an automobile alleged to have been sold to defendant, a woman, by an agent of plaintiff who had no authority to make the sale, judgment for defendant held not so manifestly against the weight of the evidence as to indicate that the jury were biased because plaintiff was a nonresident corporation and defendant was a woman. 16. Appeal and error, § 866*—what abstract of record should contain. On appeal the appellant must present in his abstract of the record the matter relied on for reversal, as a reviewing court \yill not go into an examination of the record to see if errors have been committed in regard to matters not abstracted. 17. Replevin, § 147*—when instruction as to authority of, agent not misleading. In an action of replevin to recover possession of an automobile alleged to have been sold to defendant by an agent of plaintiff, who had no authority to make such sale, but where such agent had such automobile in his possession at the time the sale was made, and it appeared that defendant made no investigation as to such agent’s authority before purchasing, an instruction telling the jury to inquire whether plaintiff, by its actions, justified defendant in thinking that such agent had such authority, held not misleading open to- criticism, in that it did not direct the jury to inquire whether a “reasonably prudent man,” or person described by some similar expression, would have been, under the circumstances named, justified in thinking such agent had such authority.