Merriman v. Fulton , 29 Tex. 97 ( 1867 )

Coke, J.

It is deemed necessary to consider only three of the assignments of error:

1. That the court erred in admitting as evidence the order from Fulton, Hensley & Cross to A. W. Canfield.

2. That the court erred in instructing the jury.

3. That the court erred in overruling the motion for a new trial.

The first assignment is not well taken. The order referred to reads as follows:

“Lavaca, September 25, 1858.

“ Capt. A. W. Canfield.

“Dear Sir: Below please find memorandum of cypress lumber for schooner Diamond, which please have filled to the letter. [Here follows description of the lumber.] "We want the best quality of cypress lumber, and are not willing to take or pay for any other; and please instruct your friend Bussell to get the best.

“Fulton, Hensley & Cross.”

The admission of this order was objected to on the ground, as appears from the bill of exceptions, that it was irrelevant, and because the bill of lumber set out in the petition—the price of which is sued for in this action—is not the same authorized by this order to be purchased, in quantity or description. The only point in this case over which there is any contest is as to the authority of Bussell to bind the appellants by a purchase of the lumber described in plaintiff’s petition. It is quite too plain for serious argument, that this order is not obnoxious to the objection of irrelevancy to that issue. It first instructs Canfield to have the bill filled, and then requests him to instruct Bussell to fill it with the “best.”

So far from being irrelevant, it would seem to leave no doubt of Bussell’s agency and authority. The question is not what the appellants intended to do by this order, but what they have done. They may not have intended to make Bussell their agent. But when they placed in his hands a paper which apparently did make him their agent, and from which third persons had a right to infer that he was their agent, they are bound by his acts, done within the scope of his apparent authority, in dealing with such third person. (Story on Agency, § 73; Paley on Agency, 189-197, 199; 4 Cow., 659; Williams v. Walker, 2 Sandf., Ch., 325.)

The other objection is equally untenable. Whether the lumber described in the petition, alleged to have been purchased by Russell by authority of this order, corresponds to that required' by the order to be purchased, is a question for the determination of the jury, under the instructions of the court. The objection goes to the weight, and not to the admissibility, of the evidence.

This order was set out verbatim in appellant’s answer. Its execution and transmission were admitted by them. It was entirely unnecessary for the appellee to introduce it.

The second assignment is not well' taken. The jury were instructed substantially, if they believe from the evidence that the appellants did transmit to Russell by Can-field an order to make a purchase of a bill of lumber, that Russell was thereby constituted their agent for the purchase of such lumber as was described in the order; and that if Russell did purchase and receive from appellee for the appellants such a bill of lumber, to find for the appellee the price which Russell agreed should be paid for it; and that if the quality and description of the lumber purchased was such as is described in the order, the appellants would be liable, although the quantity might, in some instances, be more or less; unless the jury believe from the evidence that the appellants ordered it for some specific purpose, and not for sale generally. There is no error in this instruction that we can perceive, when considered with reference to the facts of this case.

The authority to Russell is special and limited, and must-be construed, as to its nature and extent, according to the force of the terms used and the objects to be accomplished. Hor can an authority be implied where there exists an express one. But it is believed to be a general rule, that where an express authority is conferred by an informal instrument, such as a letter of advice or instruction, or a loosely-drawn order, it is construed with more liberality than a more formal and deliberate instrument. This rule has its foundation in the convenience and the necessities of a commercial community, and would seem indispensable to general confidence and security in the ordinary operations of trade and commerce. (Story on Agency, §§ 82, 83, 75.) While under a narrow and technical construction of the order in question, the correctness of that portion of the charge which holds the appellants liable for the excess of the lumber purchased .over the exact quantity ordered, might not he free from doubt, we are of opinion that the court very properly applied the more liberal and, just rule of construction, which looks to a substantial rather than a literal compliance on the part of the agent with the terms of his authority. The difference between the bill of lumber ordered and that purchased is very slight considering the quantity. It was possibly difficult, if not impracticable, to get the exact amount ordered. To fill the order substantially, as near as practicable, was clearly within the scope of the agent’s authority, and this portion of the charge of the court, in effect, so instructs the jury.

In the succeeding clause of the charge, the jury were instructed, if they believed from the evidence that, by the terms of the understanding between appellants and Can-field, the latter was to buy the lumber, and ship it at his own risk to Lavaca, &c., to find for the appellants. There is manifest error in this proposition, considered with reference to the facts of this case, but the error is in favor of the appellants. There is not a particle of proof in the record, tending to show that the appellee, Merriman, had notice of any such understanding, or that he knew anything more of Canfield’s or Bussell’s authority than is to he derived from the appellant’s written instructions, a copy of which was given him by Bussell. By this instrument, the agent was clothed, apparently, with full authority to act in the matter. Under these circumstances, it is a well-settled rule of «law, that the principal is bound by the act of his agent, done within the scope of his apparent authority, in dealing with innocent third persons, although such act may be in direct violation of his private instructions. (4 Barb., 378; 4 Cow., 645; 1 Hill, 501; Story on Agen., §§ 130, 131.) This principle of law is ignored in the charge of the court; not however to the detriment of the parties complaining here.

"We are of the opinion, that the third assignment of error is not sustained by the record. There was no error in the refusal of the court to grant a new trial. While there wasosome conflict of testimony in regard to the quality of lumber shipped on the schooner Diamond, and some, circumstances tending somewhat towards proving that the appellants may have understood that Canfield was to buy and bring the lumber to Lavaca at his own risk and deliver it to them, the clear weight of the whole testimony strongly supports the verdict of the jury. The affidavit of appellant’s attorney discloses no ground for setting aside the verdict and granting a new trial. It may be admitted that the lumber was shipped to Pendexter & Co. and not to appellants, and still the verdict is abundantly supported by the testimony. The witness, Canfield, introduced by thé appellee, upon whose testimony the verdict is mainly founded, testified to the same fact, which it is alleged this bill of lading will prove. There is no doubt but that, if introduced, this bill of lading would have been a circumstance in appellant’s favor, but not a weighty one, because not inconsistent with the truth of the testimony introduced by his adversary. The question now is, would this testimony be likely to change the result on another trial? We think not. A verdict should not be disturbed to give an opportunity of letting in light testimony, which is not likely to produce a different result, especially when witnesses have been examined to the same point. (3 Gr. & Wat. on New Trials, 1042; Glover v. Wolsey, Dud., 85.) It is not necessary to consider the question whether, if the testimony were ample for the purpose, the affidavit of appellant’s counsel shows such merit as in other respects brings his clients within the rule entitling them to a new trial.

The other point made by this affidavit, and assigned in the motion, that appellants were surprised by the testimony of Captain Wayne, one of appellee’s witnesses, most clearly does not entitle them to a new trial. Why they were surprised is not explained. There is nothing in the record to show that the appellants have any reason to complain of the evidence offered by the appellee. (3 Gr. & Wat., 968, 969.)

The appellant’s petition was ample notice that evidence like that mentioned in the affidavit would be introduced on the trial. It would be giving a party too great an advantage to permit him to take the chance of a verdict, and, when it is lost, to relieve him from the verdict, and give him a chance with another jury, merely because the evidence was stronger on the first trial than he expected it would be. (Burr v. Palmer, 23 Vt., 254; Norwich and Worcester Railroad Company v. Cahill, 18 Conn., 484.)

There is no error in the judgment, and it is

Affirmed.