Kearns v. Nickse

Pearson was, upon the conceded facts, a special agent of the plaintiff intrusted with the latter's horse for some purpose connected with its sale. Upon the trial the parties disagreed both as to the power in terms conferred upon the agent, and as to the apparent authority with which as a matter of law that power, attended as it was with the possession of the horse, clothed him with respect to dealings with third parties. It was incumbent upon the court to give the jury instructions appropriate to such a situation as the evidence should establish, and this duty it undertook to perform.

The creation of an agency carries with it the usual and appropriate means of accomplishing its object, and clothes the agent with such authority as is proper and necessary to effectuate its purposes. Benjamin v. Benjamin,15 Conn. 347, 356; Thames Steamboat Co. v. Housatonic R.Co., 24 id. 40, 51. In the absence of any trade usage, the power to sell does not carry with it or imply the power to barter or exchange. Woodward v. Jewell, 140 U.S. 247,253, 11 Sup. Ct. Rep. 784; Hayes v. Colby, 65 N. H. 192,193, 18 A. 251; Drury v. Barnes, 29 Ill. App. 166; Cleveland v. State Bank, 16 Ohio St. 236; Trudo v. Anderson,10 Mich. 357; Brown v. Smith, 67 N.C. 245.

The court was therefore in error in respect to a material matter when it told the jury, in effect, that if the power of sale was given to Pearson he thereby became clothed with apparent authority to make such a trade as he in fact made. There is nothing in the record upon which an apparent authority to barter could be predicated.

There is error and a new trial is ordered.

In this opinion the other judges concurred.