Latham v. Pledger , 11 Tex. 439 ( 1854 )

Hemphill, Ch. J.

We are of opinion that there was no error in excluding the deposition refused, and also the representations of Wm. Pledger, as to his agency on behalf of his mother, the defendant. From the allegations of the petition, and the evidence of Betts, it appears that the credit for the goods was extended to William Pledger personally, and not to him as agent of his mother. The fact of there being such agency, or any pretensions to such agency, was not known to plaintiff or his agent, until the close of the year, when he was apprised by Wm. Pledger himself, that such agency existed, and that he was not acting for himself. If the representations by Pledger, of his assumed agency, were admissible, under any circumstances, as against his principal, yet they were properly rejected in this case, for the reason that they were not made at the time of the contract or the purchase of the goods. Declarations of an agent, to be binding on the principal, must be made during the continuance of the agency, “in regard to a transaction then depending.” They must constitute a part of the res gestee—a part of the contract itself—for it is upon this ground that they are admissible, and not merely because they are admissions or declarations. (4 Wend. R. 397; Story on Agency, Sec. 134; 1 Greenleaf on Ev. Sec. 113; 10 Vesey, 123.)

But it is a general rule, that the declarations or admissions of one who assumes to be agent for another, are not of themselves admissible to prove such agency. When his agency is proved, then his representations in relation acts within the scope of his authority, and which will bind his principal, may be admitted, and as part of the res gestee, will also be binding. (2 Cowen & Hill’s Notes, p. 189, note 187; 1 Phillips on Evidence, p. 103 ; 3 Blackf. 436; 9 Peters, 689 ; 1 Conn. R. 255.) But the agency must first be proved, as derived from express delegation or by facts admissible and sufficient for that purpose,-before the declarations of the agent, respecting the subject matter, can affect the principal. There was, therefore, no error in excluding such admissions, from the consideration of the jury. The general charge, as given by the Court, afforded the defendant the benefit of all the deductions from the evidence, as against the defendant, to which he was entitled. The conduct, dealings and declarations of Wm. Pledger, in other contemporaneous affairs, was given in evidence, and the jury were instructed, in effect, that if, from the evidence, his agency on behalf of his mother, was established, she should be held responsible to the plaintiff" for whatever was purchased to carry out such agency. This gave the defendant the benefit of all the legitimate evidence to establish his agency, excluding only his owü admissions, which were incompetent for that purpose.

The jury were further instructed, that for articles not necessaries, it must appear that Wm. Pledger had authority from the defendant to purchase. There was no error in this instruction. The defendant could be bound by no act of Wm. Pledger without her own consent or authority. This may be given in various modes. It may be proven by various facts. It may be implied from recognition and acts of the principal; but it must be established, before the principal can be bound.

The instructions were as favorable to the plaintiff as, under the evidence, could be supported in law. In fact, this account condemned itself, on its face. But a small portion of the articles purchased could have been necessaries for the plantation or the slaves. They were, many of them, luxuries, if spirituous liquors, cigars, and such like articles, can be denominated luxuries. If managers of slave property, under pretence of their agency, can legitimately contract accounts of the character of the one presented in this petition, owners would very soon be stripped of their possessions, to pay for debts not contracted by themselves, nor with their consent, nor for the benefit of themselves, their slaves or their families, in any shape or degree.

The second assignment is, that the Court erred in permitting the testimony of Peter Pledger to go to the jury. If the fact that Wm. Pledger was acting as agent of his mother, in purchases for plantation use, had been fully established; if such agency had been recognized and acquiesced in by the defendant, and such had been the understanding of the community ; and if, under this supposition of authority on the part of Wm. Pledger, the plaintiff had sold such articles in his account as were necessaries, (leaving the other articles out of the question,) then the ruling of the Court, admitting the evidence of Peter Pledger as to the fact that his brother was not such agent, would have been erroneous. If Wm. Pledger had been held out to the world, by his mother, as her agent, by her authority, either express or implied, and this had been so understood by the plaintiff, then her private arrangements with Mr. Messer, by which the slaves were committed to his care and control, though apparently under the supervision of Wm. Pledger, could not have affected the contracts between the plaintiff and her publicly recognized agent, if made within the scope of his authority. But the plaintiff in this case was not deceived by any such assumption or recognition of agency. He did not, at the time of making the sales, know that the slaves belonged to the defendant, or that Wm. Pledger, whom he credited, was acting as her agent, or that he had any pretence to assume such authority. If it should appear then that the slaves were really under the control of Wm. Messer, the plaintiff could not allege that he believed them to be under the control of Wm. Pledger, as agent of the defendant, and to permit proof that they were under the care of Mr. Messer, would be to practice a deception upon him. For he did not know or believe at the time of the sale, that the negroes were the property of Mrs. Pledger, or were under the control of her son, as her agent. He deceived himself by not making inquiries as to ownership of the property, and as to who was responsible for debts contracted for its benefit; for as to the other articles, not necessaries, there can be no pretence that this defendant is responsible.

The plaintiff trusted Wm. Pledger altogether ón his personal responsibility, and with the hopes of receiving payment from the crop. Ho credit was given him as the agent of the defendant; and any evidence which shows, in fact, that Wm. Pledger was not such agent, cannot be detrimental to the plaintiff, inasmuch as he did not sell to him, credit him as, or believe-or know him to be, the agent of the mother, at the time of making the sale and the delivery of the goods; and there was no error, therefore in permitting the testimony of Peter Pledger to go to the jury.

There, was no evidence to prove that any of the articles, in this account, were what would be deemed necessaries for slaves, or proper in the care and management of a plantation, or that they were necessary for the slaves or the farming operations, under the control of Wm. Pledger. The witness Peter Pledger states positively, that none of the articles were used by, or went to the benefit of, his mother and family.

Upon the whole, the facts appear to have been fairly submitted to the jury; and there appears to be no error in the case, at least none such as would authorize us to set aside their verdict. It is therefore ordered that judgment.be affirmed.

Judgment affirmed.