Inglish v. Ayer ( 1892 )

Grant, J.

Plaintiff brought suit upon a written agreement, executed, as he claims, between himself and the defendant. Inglish resided in East Tawas, Mich., and the defendant in Chicago. The contract on the part of the defendant was signed “Ed. E. Ayer, by J. A. Widner.” The contract was set forth verbatim in the declaration. The plea was the general issue, with notice of former suit for the recovery of the same claim and satisfaction thereof, and set-off. The bill of particulars of the set-off contained five items of cash paid, which plaintiff admits receiving. The defendant introduced no evidence, and verdict and judgment were for the plaintiff.

1. The defendant objected to the introduction of the contract in evidence upon the ground that its execution had not been proven. The plea admitted the execution of the contract, and that Widner was authorized by the defendant to execute it in his behalf. Jacobson v. Miller, 41 Mich. 90; Pegg v. Bidleman, 5 Id. 26; Lobdell v. Bank, 33 Id. 408; Peoria, etc., Ins. Co. v. Perkins, 16 Id. 380.

2. The property sold consisted of cedar ties, which were to be delivered “ on rail of vessel ” during the season of 1887. The contract was dated December 9, 1886. Widner continued to act as the agent of Ayer after the execution of the contract. A vessel was furnished, and the ties delivered and shipped under Widner’s direction. The suit was commenced by attachment. Several affidavits were filed in the case, signed by Widner, swearing that he was the agent of the defendant. I think the testimony was sufficient. A letter was put in evidence, written by the defendant to Mr. Widner, in care of plaintiff, directing Widner to deliver over the rail, to a vessel mentioned in the letter, the cargo of cedar ties, and consign to him at Chicago. Plaintiff testified that this letter referred to the ties gotten out under the contract. I think this evidence was sufficient, prima facie, to show that Widner continued as the agent of the defendant, by his authority, in the transactions subsequent to the execution of the contract, and that plaintiff was justified in so treating him. They agreed upon the inspection and the amount due, and Widner made five payments upon the contract.

There being no conflict of evidence, the court should, in my judgment, have directed a verdict for plaintiff, rather than to have left the question to the jury. The agency of Widner was the only question involved, and the verdict is in accordance with the facts and the law.

Judgment is affirmed.

The other Justices concurred.