Humble Oil & Refining Co. v. Cox, Inc. ( 1928 )

As is shown in the statement above, appellee alleged in its petition that appellant acted by its "duly authorized agent" (one Monroe) in making the contract in question. In its answer appellant denied the contract was made by it or by any one authorized to act for it in making same.

That Monroe was appellant's agent at the time the contract was entered into (as alleged) conclusively appeared from evidence heard at the trial. The controversy between the parties with reference to that phase of the case was as to whether the authority of Monroe as such agent extended to the making of the alleged contract or not. Appellant insisted it appeared it did not extend so far; and it seems the trial court took that view of the testimony, for he did not submit an issue as to whether Monroe had such authority or not, but, assuming it conclusively appeared he did not, submitted to the jury, instead, an issue as to whether Monroe had, not actual, but "apparent authority" to make the contract — defining "apparent authority" as the "authority that a reasonably prudent person would believe was given the agent." Appellant objected to the submission of the issue on the ground, among others, that it was without pleadings to support it, and insists here that, in overruling its objection, submitting the issue to the jury, and basing his judgment on their finding in response thereto, the trial court committed error entitling it to a reversal of the judgment.

We think the contention should be sustained. If an agent exceeds authority conferred upon him and authority the law would imply from that conferred upon him, liability of the principal, if any exists, is referable alone to the doctrine of estoppel. "Authority by estoppel," said the Supreme Court of Colorado in Moore v. Switzer, 78 Colo. 63,239 P. 874, "is not actual but apparent only, and is imposed on the principal because his conduct has been such as to mislead, so that it would be unjust to let him deny it," and, the court added, "estoppel must be pleaded." A like ruling was made by the Court of Civil Appeals at Fort Worth in Rail v. Bank, 3 Tex. Civ. App. 557, 22 S.W. 865, and in Swayne v. Ins. Co., 49 S.W. 518. In the Rail Case the suit was on a verbal contract, as here, which, the plaintiff alleged, was made with the defendant "through its authorized agent." The defendant denied the authority of the agent to act for it in making the contract. The court submitted to the jury a question as to whether the agent had such authority, and, if he did not, as to whether plaintiff had ratified his act or not. In affirming a judgment in the defendant's favor, the court said:

"Appellant complains * * * that the court should have charged the jury that, if the bank held out Nichols as having authority, it would be liable for his contract, though in fact he was not authorized to make it. No such * * * case was set up in his pleadings. * * * We understand the rule in this state to be that an estoppel, which is the principle involved, to be available must be alleged."

And see Lane v. Sullivan (Tex.Civ.App.) 286 S.W. 541; Farmers' Union Co-op. Clearance House v. Guinn (Tex.Civ.App.) 208 S.W. 362; Garrow v. Texas N. Ry. Co. (Tex.Civ.App.) 273 S.W. 277; Sigel-Campion Live Stock Commission Co. v. Ardohain, 71 Colo. 410, 207 P. 82.

Other questions covered by appellant's fifty-five assignments of error have not been considered — some of them because they are not likely to arise on another trial, and others because appellant has not complied with requirements of rule 31 for the government of Courts of Civil Appeals in presenting them in its brief.

The judgment is reversed, and the cause is remanded to the court below for a new trial