Central Pennsylvania Telephone & Supply Co. v. Thompson , 112 Pa. 118 ( 1886 )

Mr. Justice Clark

delivered the opinion of the court, March 1st, 1886.

The plaintiff, Moses Thompson, claims to recover, in this suit, the price of two hundred and four.telephone poles, which he alleges he sold and delivered to the Central Pennsylvania Telephone and Supply Company in the months of May and June, 1883, under a contract with one S. P. Dunkel, the company’s agent. It is not denied that the company received the "poles, or a part of them, and that they applied them to their use in the'erection of the. Boalsburg and College lines; but, by way of defence, the company allege that they purchased the poles, not from Thompson, but directly from Dunkel, and that ho contract relation whatever, at any time, existed between Thompson and the company with reference thereto. They allege that Dunkel had an independent contract with the company, by the terms of which he was to supply the poles at a certain designated price, and that the poles were received by the company from Dunkel upon the footing of that contract, and not otherwise.

The agency of Dunkel was, therefore, without doubt, the pivotal point in the case. It was not important what Moses Thompson may have supposed, or, indeed, what the conduct of Dunkel may have induced him to believe as to his authority, if the company received the poles in good faith upon the footing of a contract they had with Dunkel himself. To render a principal liable there must be proof of agency, either expressed -or- implied';' 'huC.-the- fa'ct- cíuyno't-be'proyelvby- tire declarations of;the' alleged' agent, nor by his acts, done.without the knowledge' or authority- of the .principal:; Whiting v.Lake, 91'Pa-. St-,-349.' The'offer contained 'in the-first specification,however, was without doubt rightly received, for it contained' a proposition to, show, directly,,-that Dunk el was acting- as-the agent -of the company-in this transaction, with other-matters,-in'corroboration, and - that the poles, to-.the, number of- two hundred and four, were actually appropriated and used--by the company. The offer was not ap specific as it should ha'vé-been;’ it did not disclose the . nature of the evidence 'by-. which the fact would, be.-.-shown; but it was not tíbjéeted'to on -that-ground. The order of’the evidence to be gi'v'en iunder'the offer was within-the discretion of -the-court-. .The- better--practice undoubtedly is,’first, to require -proof, of .tije.'a-gen'cy,'or of facts from-which agency.may be fairly-inferred, -and-if this fail much uséless matter may be eliminated "fi;om the cause. ' '

; ;-The evidence of'William'Thompson; it is true, fell far short of the offer. It-'related almost exclusively to the,acts and declarations of Dünkel and of Malin,'the superintendent, the .admissibility-of which wholly depended upon their authority to represent the company in a transaction of that kind,-and -no' evidence -of.-that authority-had as yet been given. . ■

;At that stage,of the trial the court, on the defendant’s .rer quest,-would doubtless 'have'withdrawn bis testimony from the consideration of -the jury. Other evidence, to. which we .yvill -not,'refer, was afterwards received, however, bearing -upon the -question of. Dunkel’s agency, and’the rule is weli -settled, where- some evidence of - agency has been given, it is .competent to -give in. eyidence the acts and declarations of the alleged-age-pt respecting the. subject matter of his authority: Stewartson v. Watts, 8 Watts, 392.

The; acts and declarations of Mr. W. L. Malin were also relied ,u.pon-to fix the’responsibility of the company. Mr. Malin is ¡the superintendent of the company’s lines, and it is alleged that .yyhat he.-said'and what he1-did in relation to. the delivery of .these’-poles .had a- tendency to. cause-Thompson to'believe that Du-nkel represented -the company .in -his contract.- The learned court, in substance, instructed the. jury that if from.the acts and declarations of-Dun'kel, “ and the action and part taken-by Malin,” Thompson was,led.to.believe that he vyás contracting with the, eompany?:'the defendants, having received the poles', were bo.und.to Thompson for.the price. • We fail to find, after .a careful .examination' of -the testimony,-that Malin did;anything, or .said anything,, which would justify the submission of fbeúnqui-ry suggested., , But. if -he did, it was but fair .that th^ defendants'should ’ have been allowed to show,' by’ R. M.’ Bailey, the general manager, whether or not Malim, as. the superintendent of the company’s lines for the central;district,’' had any authority, in fact, to biiid the company by what he said or did in reference to their contracts. It was clear; error to exclude this inquiry: It is always competent for a principal to show the scope and extent of his agent’s authority. A superintendent is defined torbe one who. has the oversight and charge of something, with the power of direction, as the' superintendent of an'aims house or of the public works;’ but a superintendent may havé no authority to furnish supplies’ or purchase materials • for the enterprise he directs. What possible objection could there be to showing precisely whát his powers were ? If he was held out to the world in his general course of business for more extensive power's,-the effect of the whole evidence-was for the jury.'. His acts .could: only bind-the company within the scope of'his authority,'- hence proof of his authority" was an important and material"'question. In American Life Ins. Co. v. Shultz, 1 Norris, 51, the plaintiff had given- some evidence to show that one. Geiger "was agent for the company, but without any definite or' accurate statement of the scope of his authority, and it was. held competent for the' company't'o show what his powers weré, and that he' exceeded them, or.to even deny the agency itself. ‘í Thé extent-of an -agent’s' powers,” says the court-in that cáse; “ depends-, upon the'authority under which he'acts. This in ay be shown 'by his written instructions ór his coursé 'of dealing. It is true the public are not always bound by the private-instructions of the agent, and may;hold the. principal responsible, though the particular acts done are!in,excess of his private instructions. This was asserted in Adams Express Co. v. Schlessinger, 25 P. F. S., 246. It applies to cases' where the agent has been, held out to the world as such by the principal, allowed to exercise, enlarged powers from tinie. to time, and his acts therein have been ratified by his principal. -But this doctrine in no sense conflicts with’ the right of the principal to show that his agent in a given case exu ceeded his authority. The effect of- such evidence, when received, is for the jury.” It was erro.r, therefore, arbitrarily to 'determine the scope" of Malin’s authority from the mere; fact that he'was the “'superintendent,” and after.admitting proof of the manner, in which,, in specific instances, he was held out .to the world, to.exclude :the-evidence of his particular instructions.from-the company.

We are of opinion also that too.much was. made of the corporate name of the Company. The object and design of a private corporation are not-to- be' ascertained in” its''corporate title;; but if they Were, and it was assumed that the especial business of this company was the purchase and sale of supplies for telephone communication, no implication could arise, that therefore the purchase of these poles by Dunkel was directly in behalf of the company. What was said on this subject was not perhaps, in itself, absolute error, but its tendency, we think, was to mislead the jury. '

Nor do we think the learned court was justified in the comments made upon the letter of May 81st, 1883, from Dunkel to Thompson. The letter referred to is written in a style quite common in business communication. There is no room for the suggestion that it was “intended to convey a double meaning,” or that the writer purposed “ to express his meaning vaguely,” nor can it be construed to leave any impression upon the mind “ that there was some one else beside himself engaged in the transaction,” or raise an impression “ that he was acting for the company.” .It may be said, with propriety perhaps, that the letter does not antagonize or deny Dunkel’s agency, but it certainly contains nothing which is inconsistent with the claim of the defendants, that his purchase was on his own account. The exposition which the learned court gave of this paper-was one-sided, conjectural and argumentative. The letter, prima facie, imports a purchase by Dunkel himself, but if it appear by proper evidence, aliunde, that it was in fact written by Dunkel, acting as the agent of the company, it cannot be said to be inconsistent with that view of the case.

The most serious error, however, into which the learned court fell was in giving to the jury binding instructions that, without regard-to the question of Dunkel’s agency, the company werp, in any event, bound for the price of 154 poles, which it is admitted passed the inspection, arid were applied to the use of the company. After the completion of this contract for furnishing poles for the several lines in Centre county, Dunkel made a settlement with the Telephone Company, at which he was paid the full amount of his contract price for poles furnished, less the amount of certain vouchers made out at his request directly to parties from whom he had purchased poles. Among these vouchers was one to Moses Thompson for one hundred and fifty-four poles, at one dollar and ten cents each, amounting to the sum of one hundred and sixty-nine dollars and forty cents ($169.40). This voucher Dunkel took to Bellefonte, and tendered to Mr. Thompson by telephone, who declined to receive it because it was not for a sufficient amount. He then returned the voucher to the office pf the Telephone Company, where it has since remained.

Referring to the amount of this voucher, the learned court says: “The plaintiff would be entitled to recover that amount in any event — the price for 154 poles, which the company admits it received, and which it has now in usé, and for which it has drawn a voucher for $169.40 in favor of Moses Thompson, the plaintiff. The plaintiff is entitled to recover that amount, even though the jury should believe that there was no contract for the delivery of those poles between the plaintiff and this company, but that the contract was between Moses Thompson and S.. P. Dunkel; for the company has settled with Mr. Dunkel, and retained $169.40 for. Mr. Thompson, and they cannot now retain this $169.40, which they admit belongs to Moses Thompson. We therefore say to you that it is liable to Moses Thompson for that amount, for money had and received for his use. The plaintiff claims this, and as a principle of law we are bound to say to you that the point is well taken. According to their own showing, this money belongs to Moses Thompson.”

Assuming that the company originally stood in no contract relation to Thompson, but received these poles under their agreement with Dunkel, and this in view of' the charge, must be assumed, the instruction of the court, quoted above, is manifestly erroneous. The company, by making a voucher in Thompson’s name, assumed no responsibility to him until that voucher was accepted. It was delivered to Dunkel, who tendered it to Thompson, in discharge of his own debt; the tender having been refused, no liability of the company was thus created. It is unimportant that the voucher was returned, and that the money is still on deposit with the company. Thompson, having declined to accept it, Dunkel might dispose of it as he chose.

It is further contended on part of the company that the poles were to be paid for only when the contract was “ filled, and that the contract had not been completed, or fully .performed by the plaintiff at the time this suit' was brought.” This assignment of error cannot be sustained.

There is some evidence that Thompson, after the receipt of the letter of May 31st, 1883, objected to the size of the poles required. He said he could not furnish poles of that size, but being urged to go on, said he would do the best he could. It is shown that he furnished 154 poles of the required size, which were accepted, and there is some proof that 50 others of a less size, although at first rejected, were afterwards also accepted. If this be so, the contract would appear to have been bona fide, substantially performed. Besides, if this were not so, the parties would appear to have mutually dispensed with full performance.

We are of opinion, however, that, leaving out of view the order in which it was received, the evidence, as a whole, was suúh as required a' submission to tbe jury of'the' question of the agency of-S.'P. Bunkel. We do not-desire to refer to, much less to- discuss,' the various matters exhibited in the-proofs in chief -and rebuttal, upon which this opinion is ex-, pressed,- as,-in- so doing, wé might,-' without ■ intending it,damage the interests of one or other of the parties at the next ’ trial.

For the reasons above, expressed, the'judgment is reversed, and avenire¡faaias de novo awarded.