Stiteler v. Ditzenberger , 1911 Pa. Super. LEXIS 34 ( 1911 )

Opinion by

Henderson, J.,

It is a well-established rule that if a person undertake to perform an act as the agent of another and he does not possess authority from his principal therefor or if he exceed the authority accorded to him he will be personally liable to the person with whom he is dealing: Wharton on Agency, sec. 524; 1 Pars. on Cont. 67; 2 Smith’s Lead. Cases, (10th ed.) 380, note; Story on Agency, (10th ed.) sec. 264; Jefts v. York, 64 Mass. 392; Baltzen v. Nicolay, 53 N. Y. 467; McConn v. Lady, 10 W. N. C. 493; Kroeger v. Pitcairn, 101 Pa. 311; Wolff v. Wilson, 28 Pa. Superior Ct. 511. And this is so whether the agent falsely misrepresent his authority with intent to deceive or not; or where with knowledge of his want of authority without intending any fraud he assumes to act as though he were fully authorized; or where he acts with a bona fide belief that he has authority but in fact has not. Where a party has been misled to his prejudice by the unauthorized act of an agent he is not limitied to an action against such agent for the injury done but he may treat him as a principal and recover as if the contract were with him individually. The reason for this is that the party dealing with the agent has no recourse against the principal; the contract is not his in fact, and justice requires that the person who occasioned the loss to the other party to the contract should be made responsible because of his unauthorized conduct. Even in a case where the agent honestly believes he has authority to make a contract, but in fact has not, a plain principle of justice requires that if an injury be done to another by the assumption of an unauthorized authority the person occasioning the loss should be responsible rather than the party who was misled to his hurt by the exercise of such assumed power. The application of this principle to the present case leaves no room for hesitation in approving of the action of the court below. It was admitted that the plaintiff performed the work for which his bill was rendered. It was clearly proved that the defendant had no authority to contract for the amount and character of work performed. It was also shown that he knew or might have known that the expense to be incurred was limited to $622.13, for the bid of Romulus Stiteler which was in writing and was forwarded by the owners of the building to the defendant amounted to that sum and this bid appears to have been in the possession of the defendant at the time the contract was made with the plaintiff and during the period covered, by the plaintiff’s work. The landlords having repudiated the act of their tenant the plaintiff was at liberty to treat the defendant as the principal in the case. He was the only person with whom the plaintiff dealt and he assumed authority to order work of an amount and character greatly in excess of that which the landlords permitted. The plaintiff was justified in assuming that the defendant had authority to do this for he was there in the possession and use of the hotel and claimed to be acting for the owners in ordering the work. If he is required to pay that which he supposed was covered by the bid of Romulus Stiteler he has himself alone to blame, for a reference to the letter written to him by his landlords dated December 23,1907, and the Romulus Stiteler bid which accompanied it, would have pointed out to him the limit of his authority.

The payment by the landlords to the plaintiff of an amount equal to the Romulus Stiteler bid was in no sense a ratification of the defendant’s act. It was a repudiation, rather. They declined to recognize the plaintiff’s contract or to pay his bill, but inasmuch as work had been done in excess of the Romulus Stiteler bid the landlords were willing to pay as much as they had permitted the tenant to contract for on their account. This was a fair and businesslike transaction on their part but did not commit them in any way to the payment of more than that amount.

Objection is made that it is not averred in the declaration that the plaintiff’s contract was with the landlords, Scheutze, Renziehausen & Co'., and that the plaintiff in assuming to act for them exceeded his authority and entered into the contract which is the basis of this action; and Schalcher v. Bergdoll, 41 Pa. Superior Ct. 547, is referred to as an authority. That case does not sustain the appellant’s position, however. It came up on an appeal from an order of the court making absolute a rule for judgment for want of a sufficient affidavit of defense and the defendant undertook to set up by way of defense an alleged agreement entered into by an agent, which was said to have been done without authority, but the affidavit having recited the facts failed to set forth that the principal had not authorized the agent to make the representations and agreement which the affidavit declared the agent made for the principal and this was held to be a defective averment. There were other grounds, however, on which the opinion of this court was based and which were sufficient to support the conclusion there reached. The case was adequately presented to the jury in the charge of the learned trial judge and the verdict of the jury was in harmony with the weight of the evidence.

The judgment is affirmed.