Fruit Dispatch Co. v. Magee , 60 Pa. Super. 259 ( 1915 )

Opinion by

Képhart, J.,

This is an appeal from an action by thé fruit company as plaintiff against Magee Brothers, defendants, for produce, and a, counter claim for damages for failure to ship bananas as agreed upon. The verdict sustained defendant’s counter claim which the court below refused to disturb. Hence this appeal.

The defendants presented evidence showing that on December 15,1910, in Philadelphia, they made and concluded a contract for the shipment of a car of bananas from New York on the 16th. This contract did not depend on any memorandum of acknowledgment and stipulation therein contained, that “it is to be accepted only by. shipment.” Without defendants’ consent the contract thus, made could not be modified by subsequent receipt of such acknowledgement. It appears from the defendants’ testimony that when bananas were purchased on the dock they never received any such acknowledgment or memorandum, as the sale was. then and there concluded. It is apparent plaintiff must have regarded Gallagher’s contract as one requiring shipment to.be made on the 16th.' Its representative asked defendants, when it found it impossible, through weather conditions, to ship on the 16th, whether it should make shipment thereafter, and not being advised no shipment was made.

Gallagher, the agent who sold the bananas to the defendants on the dock in Philadelphia, to be shipped from New York, was named in the memorandum of purchases -as the resident manager. The defendants purchased yearly from him, as plaintiff’s representative, from thirty-five to fifty cars of bananas, most of which were on orders for future delivery. In no instance, as far as we can determine from the testimony, were these contracts for future delivery repudiated by the plaintiff. The law. is well settled that where authority is to be implied from acts of the agent, and evidence appears that a course of dealing has been established which has been recognized by the principal, th,e question of authority and scope thereof is for the jury: Singer Mfg. Co. v. Christian, 211 Pa. 534. “When a corporation intrusts a. principal officer or manager with the general supervision of a particular branch of its business, it clothes such officer or manager with the authority of a general agent coextensive with the business intrusted to his care, and private instructions limiting his ostensible powers will not protect the corporation from liability for the acts , of the agent done within the scope of his ostensible authority, although the specific act may be in excess of private instructions”: American Car & Foundry Co. v. Alexandria Water Co., 218 Pa. 542; Buckwalter Stove Co. v. Central Trust & Savings Co., 53 Pa. Superior Ct. 558.

When the plaintiff failed to ship from New York the car of bananas to be used by the defendants for their Christmas trade, defendants were compelled to buy in Philadelphia bananas necessary to supply this trade.; in so doing they paid a sum of money in excess of that which they would have been required to pay had the plaintiff performed its agreement. That plaintiff was prevented by weather conditions from making shipment from New .York on the 16th, would not relieve it from liability for the damages defendants sustained. Defendants relied on this contract and plaintiff’s failure to perform caused the loss.

The only purpose for which the Code Book would be relevant was to rebut defendants’ proof of lack of knowledge of a course of dealing; that from the memorandum and Code Book they knew an acknowledgment must follow the purchase; but in the face of the defendants’ testimony that the sale was complete on the dock, and that the Code Book had been returned some seven months before as being of no use to defendants, this Code Book would not be conclusive of the defendants’ right to set-off. This testimony was for the jury.

The. assignments complaining of the charge of the court are without merit. The charge presented every phase of the plaintiffs’ case. The motion to strike out plaintiffs’ testimony with reference to the contract of December 15th, because the contract was not proven and that Gallagher had no authority to make such contract, was properly refused.

The assignments of error are overruled and the judgment is affirmed at the cost of the appellant.