Cates & Shepard v. Seltzer ( 1916 )

Opinion by

Orlady, P. J.,

At the time this cause of action arose, the defendants were the owners of a recently erected theatre, in Atlantic City, New Jersey, and which was then practically completed, and had been formally leased to a Mr. Nixon, who was in possession of the premises. The plaintiff corporation had been a subcontractor on the operation. During the progress of the work, on two occasions, and under express authority from the defendants, their architects directed the plaintiff to do certain specified additional or extra work, the items aggregating $1,081.00, which was completed and paid for by the defendants. This controversy relates to a third item of extra or special work, the definite authority for doing which is disputed. The plaintiff in his statement of claim alleges that the architects were the “duly authorized agents” for the defendants, and as such gave to the plaintiffs the order for doing this extra work, and in accordance therewith the plaintiffs furnished and hung the extra arc lamps specified in the order. To this the defendants replied that the architects were not the agents of the defendants, or any of them and that the theatre, then being under lease to Mr. Nixon, and operated by him, any acceptance of any quotation for work, labor or materials was made to, accepted by, and furnished for the lessee, and not for the defendants. The work in controversy was properly done, and on its completion the architects refused to give a certificate to bind the defendants, but consented to give one in the name of Nixon Theatre, owner.

The cáse went to trial on the issue thus raised, and was sent to the jury on this theory, Judge MoMichael saying: The plaintiff is bound to show two things in order to recover in this case. He is bound to show that Magaziner, the architect, held himself out as having authority from Seltzer Brothers — that he had the authority from Seltzer Brothers, and also that the course of dealings between the parties were such that a prudent, ■ reliable, discreet business man would be justified in assuming that the architect was the agent of Seltzer Brothers to do this work.

No evidence of direct or actual authority was shown in support of the averment — that the architects were the duly authorized agents to give the disputed order. The defendants relied on what they alleged was the apparent scope of his authority, and adduced proof from which, without denial, that inference might be drawn. We held in Wilson v. Sale, 41 Pa. Superior Ct. 566, by Rice, P. J., “The general rule is that a principal is responsible for the misrepresentations of his agent within his authority, is beyond question, and the better opinion is, that as to third parties affected by his acts or words, it is the apparent scope of his authority, and not his actual instructions that must govern. That is the basis on which the business of the world in the present day is transacted, and the rule should be enforced in a liberal spirit, with regard to the actual habits of the community.”

The case presented here is within much narrower bounds, as the defendant positively denies that the architects were authorized to act for them in the matter in dispute, in which contention they were corroborated by the direct testimony of the architect and one other witness, and supplemented with the additional fact that in each of the other instances of departure from the plans and specifications, the plaintiffs required the previous written authorization of the architect to do the extra work. The measure of proof required in such cases is not fixed by any rigid standard, and in this case the act of the architect on which the plaintiff relied was a known departure from the course of business between the parties ■ — in reference to extra work and the character of the agent’s authority in relation thereto.

To render a principal liable, there must be proof of agency, either express or implied; but the fact cannot be proven by the declarations of the alleged agent, nor by his acts done without the authority of the principal, but, it is always competent for a principal to show the scope of the agent’s authority: Penna. Telephone & Supply Co. v. Thompson, 112 Pa. 118. The principal upon which the agency and its scope may be implied or inferred from a course of dealing, might be applicable if there were any evidence that the agent had been in the habit, with the knowledge and acquiescence of his principal of making similar contracts, with the plaintiff or other members of the general public: Fee v. Express Co., 38 Pa. Superior Ct. 83.

In the case before us, there was no course of dealing, as this was the sole instance in which the agent is alleged to have acted on apparent authority, it is plain that the doctrine under which an apparent authority may be implied from a holding out, or course of dealing would not be applicable. The liability of the defendants depended upon the solution to the dispute of fact between the plaintiff and the architect, in regard to the order to do this work, and this question was for the jury alone. Where an agency is to be implied from the conduct of the parties, or is to be established by witnesses, the fact and scope of the agency are for the jury: Berkie v. Coleman, 50 Pa. Superior Ct. 105. The jury are to judge of the credibility of the witnesses and of the implication to be made from their testimony; it is error for the court to decide the point as a matter of law: Park v. Kansas City, Etc., Railway Co., 58 Pa. Superior Ct. 419. The controlling question was, whether there was sufficient evidence of authority, actual or implied, to carry the case to the jury, and as there was no pretence of direct authority, the plaintiff should not complain of the court in submitting it to the jury to determine the question of apparent authority, when in his pleadings he only averred, due or direct authority. The parties to the telephone conversation were fully examined, and all that was material was read as a part of the charge of the court, and concluded, — if that testimony is true, and it is not denied by Mr. Cates — he gave accounts of conversations in rebuttal, but did not deny this, the defendants ought to have your verdict, because evidently, if that was true, Cates when he made the contract for the lamps, was notified that Mr. Nixon was the man who was ashing for the lamps, and that subsequently the matter was referred to Mr. Love, who had charge of Mr. Nixon’s affairs.

The case was tried by able counsel and submitted to the jury in a fair and adequate charge.

The judgment is affirmed.