Schofield v. Conley , 126 Mich. 712 ( 1901 )

Grant, J.

(after stating the facts). 1. It was not-error to admit testimony to show the condition of the-horses for a long time previous to the alleged sale, and. that while plaintiff owned them they were treated for disease.

2. Error is assigned upon the refusal of the court to instruct the jury that there was no testimony of any combination or understanding between plaintiff and Lake to sell the horses to defendant. It is true that there was no-testimony of any conversation between plaintiff and Lake tending to show such a scheme. But we cannot say there-was no testimony tending to establish such a state of facts. Lake had been an employé of plaintiff. There was testimony that the horses were diseased, and had been for some time, and that these facts were known to plaintiff as well as Lake. Lake and defendant were in direct conflict as to the authority conferred upon Lake, and as to-what took place when defendant came to St. Johns! In such case the appearance of the witnesses and the man ner of testifying are important. The inferences were for the jury, and not for the court.

3. Error is assigned upon the refusal to give the follow ing request:

“If you find from the testimony in the case that, upon a purchase of the horses in question by Lake for Conley, Schofield turned them over to Lake for Conley, and that they remained in Lake’s possession or control until after-the commencement of this suit, and further find that,shortly after the arrival of Conley, Lake informed him that he had purchased the team, then, under the undisputed testimony in the case, Conley must be held to have-affirmed the contract of Lake in all respects, for the-reason that he took no steps to disaffirm or rescind it; and your verdict must be for the plaintiff for the unpaid part of the purchase price, and the interest thereon since the-date of the commencement of this suit.”

This request was properly refused. Under any view taken of the testimony, defendant acted, promptly in dis affirming the contract. According to his own testimony, as soon as Lake showed him the horses he refused to take them. He did not then know Schofield, and had never seen him. The first conversation he had with plaintiff, he refused to take the horses. This was acting with sufficient promptness in disaffirming the contract.

4. The court refused to instruct the jury that the question was not what powers as an agent defendant actually gave Lake, but what powers he put him in position to assume, and gave the plaintiff to understand that he had. This was properly refused. Plaintiff relied at his peril upon the authority conferred upon Lake. He made no inquiries as to Lake’s authority. If defendant authorized Lake to purchase horses of a certain quality, color, and soundness, this did not authorize Lake to buy horses generally. The statements, if any, made by Lake to plaintiff, were not binding upon defendant. Lake does not testify that he disclosed to plaintiff for whom he was purchasing the horses. All that plaintiff testified to upon the subject was that, when Lake first spoke to him about buying the “buckskin,” he said he was going to buy two or three teams for Mr. Conley. The authority conferred upon Lake was a question of fact, and was properly submitted to the jury.

The judgment is affirmed.

The other Justices concurred.