Duncan v. Hartman , 143 Pa. 595 ( 1891 )

Opinion,

Mr. Justice Mitchell:

The title to the laud being admitted in plaintiffs, the defendant had the burden of showing that his act was not a trespass. This he undertook to do by the written agreement between himself and Cooper; and as that set out in express terms that Cooper was acting as agent for the Duncan heirs, defendant was bound to show that it was within Cooper’s authority as such agent. Cooper’s authority was in writing, and was “ to act as our agent for our properties.....and honestly and diligently manage said properties.” The delegation of power, here, is very general, but also very vague; and its precise limits must depend very largely on the circumstances as shown by the evidence. It is conceded that it would not authorize the sale of the land, while on the other hand it is equally clear that it would authorize leases in the ordinary form for ordinary terms. Between these extremes may be a series of more or less debatable acts, as to which the only rule that can be laid down as matter of .law, is that an agency to manage implies authority to do with the property what has previously been done with it by the owners, or others with their express or implied consent; or further, to do with it what is usual and customary to do with property of the same kind in the same locality. Thus, farming land could be leased for terms and upon conditions usual for farms in the neighborhood. If there was an open mine on the land, the management of the property would include the working or leasing of it in any way usual for such mines; while the opening of a mine on land which had never been mined before, would be a more doubtful act, and, except in a mining country, would not prima facie come within the terms of such an agency.

The agreement between Cooper and defendant granted the latter the sole right to quarry, take and sell ganister stone from a certain tract of land for the term of fifteen years. Without going into the niceties of distinction between licenses, chattel interests, and sales of minerals in situ, as sales of the land, it is sufficient for the present case to say that, while the grant from Cooper to defendant was more than a license, because it passed an exclusive interest in the land for certain purposes for the specified term, it was less than a sale, for the term was limited, and stone not actually taken would remain part of the land and revert to the lessor at the end of the term. It was therefore a lease, a chattel interest within the case of Brown v. Beecher, 120 Pa. 590. But the inquiry still remains whether it was such a lease as is ordinarily given in the management of land similarly situated. Prima facie we do not think it was. It is a restriction upon the owner’s control of his land for a term of fifteen years; and yet it is given by an agent who was appointed for a single year, which had nearly expired. It was not a grant of a right to take an animal profit which would be replaced by nature, so that the land would come back to the owner in the same condition that it left his control, but a diminution of the body of the land itself, to the permanent diminution of its value. It was analogous to the opening of a new mine, which is a damage to the inheritance, and, as such, is held to be waste in a life-tenant. Such a grant cannot fairly be held to be within the power of an agent for the general and ordinary management of property. The jury, therefore, should have been instructed that the lease from Cooper was prima facie beyond his authority, and no justification for the defendant’s acts.

It was competent, however, for the defendant to show that the circumstances made the lease valid. This he might do in several ways. First, by showing that this was a usual and customary way of dealing with land of that kind in that neighborhood. Or, secondly, by showing a previous course of dealing with this land by the owners and the agent, which gave a construction by the parties themselves to the agent’s authority under his -written employment. This view of the case was discussed by the learned judge in his charge, but he fell into error in ruling it himself, instead of leaving it to the jury. No matter how undisputed the evidence was, its sufficiency was for the jury. The burden was on the defendant to show a course of dealing which would enlarge the prima-facie powers conferred by the writing, and it was the province of the jury to determine whether the evidence met this burden to their satisfaction. The prior leasing of the ganister to other parties, Bice and McLanahan, was evidence of the willingness of the owners to have this land utilized in this way, and to that extent reduces the force of the objection that this was an extraordinary and uncontemplated act of management. But the McLanahan lease, which approximates most nearly to defendant’s, seems to have been made with previous consultation and consent of the owners, and would get its validity from such consent rather than from Cooper’s written authority. The other special instances of long leases, to Delosier, etc., with the attendant explanations and circumstances, were proper for the consideration of the jury, and it was not necessary that they should have been made under the identical authority to Cooper, of January, 1886. A course of dealing may be as well shown under a series of successive, if substantially similar papers, as under one.

Thirdly, defendant was entitled to show that the owners had received the rent which he paid Cooper, or allowed Cooper to use it for their benefit, without objection. This would be evidence of ratification by estoppel; and the jury would be bound to consider the entry of the money on Cooper’s books, the accounts that he sent to his principals, their opportunities and habit of examination of his book entries, the circumstances of the handling of the check of the Ganister Company to Duncan, in October, 1887, and the various versions of the conversation that then took place between him and Cooper, etc., etc., as bearing upon the question whether the plaintiffs accepted the money as part of Cooper’s receipts on their behalf, knowing, or having such notice that they were bound to know, that it came from defendant as rent under the lease in dispute.

If the jury should find for the defendant, under the foregoing principles, the informal execution of the lease by Cooper would not stand in the way. It purports to be a grant from Cooper, not in his own right, but as agent, and his principals are named as “ the Duncan heirs,” by which it appears to be conceded is meant the plaintiffs. It is not at all analogous, therefore, to Bassett v. Hawk, 114 Pa. 502, and similar cases, where the instrument purported to grant the attorney’s own estate, only, without connecting his principal at all.

Judgment reversed, and venire de novo awarded.