46 Mo. App. 404 | Mo. Ct. App. | 1891
The defendant is a manufacturer of whiskeys in the state of Kentucky, and, at the dates hereinafter mentioned, J. S. Hackley was one of his traveling salesmen or solicitors, and as such executed the following memorandum of sale :
“St. Louis, April 26, 1890.
“This is to certify that I have sold P. K. Lenehan, of Sti Louis:
100 bbls. Ky. New Whiskey, made........April, 1889.
100 bbls. Ky. New Whiskey, made........May, 1889.
50 bbls. Ky. New Whiskey, made........March, April
or May, 1888.
“The ’89' at forty cents per gallon, and the ’88 at fifty-five cents per gallon, cash, and I also guarantee the outage according to the ‘Carlisle Bill’ on each and every five-barrel lot, storage paid up until May 1, 1890, on all of it, and insurance to hold good until May 10.
“ W. S. Habéis,
“Per J. S. Hackley.”
Lenehan assigned his interest in the contract to the plaintiff, who, upon the defendant’s refusal to deliver the goods mentioned, instituted the present action to recover damages for a breach of the contract, and, upon its trial before the court sitting as a jury, recovered judgment. The only error assigned is that there was no evidence showing any authority on the part of Hackley to execute the contract sued upon, and hence no evidence warranting a recovery.
The plaintiff gave evidence showing that he had known Hackley for years, and that Hackley for some time prior to the execution of the memorandum of sale
Such being the evidence, it is apparent that it was wholly insufficient to warrant the judgment rendered. The fact of agency, as well as its scope and extent, may be proved by the habit and course of dealing between the parties (2 G-reenl. Ev., sec. 65), but can never be established by the acts and declarations of the alleged agent alone. Farrar v. Kramer, 5 Mo. App. 167. Here no course of dealing was shown, which would warrant the finding that the agent had authority to make absolute contracts of sale for his principal, and, in the only instance wherein he had done so, his act was not ratified by his principal.
Evidence of instructions by a principal to his agent are always admissible as original evidence to prove the
Proceeding to enter such judgment upon the record as the court below should have rendered, we reverse the judgment, and enter judgment for the defendant. All the judges concur.