132 S.W. 815 | Tex. App. | 1910
On a former day of the present term of this court we affirmed the judgment of the trial court in this case. Subsequently the appellant filed a motion for rehearing, and that we certify this case to the Supreme Court. These motions were by us overruled. Appellant has filed a motion to reconsider our action on its former motion, and to grant a rehearing, and certify this ease to the Supreme Court. The motion is based upon the proposition that our opinion herein is in conflict with the opinion of the Court of Civil Appeals for the Second District in the case of Lake Como Company v. Coughlin, 9 Tex. Civ. App. 340, 29 S. W. 185, and also with the opinion of the Court of Civil Appeals of the Sixth District in the case of Ins. Co. v. Frazer, 112 S. W. 812-814. If there be such conflict, it is our duty to certify to the Supreme Court of this state the question in conflict for its decision thereon. Acts 26th Leg. p. 170; McCurdy et al. v. Daniels, 95 Tex. 246, 66 S. W. 664. But, if there be no such conflict, we ought not to so certify this case, especially as by so doing, on account of the congested condition of the docket of the Supreme Court, such certification would amount to a delay in the final decision of this case of perhaps 12 months. Parties to a case are entitled to as speedy a termination of the' suit as the law and the circumstances will permit.
Is there a conflict between our opinion in this case and the cases cited by appellant? We think not. Those cases simply announce the well-established rule of law that, in order for a principal to be bound by the acts of an agent, the authority of such agent to so bind the principal must be shown. An agent is not an agent, except within the scope of his appointment as such; and consequently the act of an agent beyond the scope of his authority is not an act of agency at all. Applying these well-settled principles of law to the cases cited by appellant, we find that in the case in 9 Tex. Oiv. App., 29 S. W., supra, the court held that the act of Winthrop in stating that the appellant would owe a contractor a certain amount when he finished building two certain houses was not binding on appellant, because it affirmatively appeared from the written instrument creating his agency that Winthrop had no authority to speak for appellant on this matter. The court says: “The scope of such agency must be measured by the terms of the contract referred to.” And, construing said contract, as it was its duty to do, the court said: “The agency * * * must be referred to the building of houses. * * * The declaration was beyond the scope of Winthrop’s agency, measured by the character of the business with which he was charged, and by the terms of the contract by which he was necessarily guided in the discharge of his duties.”
In Insurance Co. v. Frazer, supra, one Harrell had taken the application of the insured for the policy upon which recovery was sought. The trial court permitted the declarations of Harrell affecting the company’s liability, made after the death of the insured, to be put in evidence. It does not appear that he had any connection with any
But how stands the case at bar? Of course, in this, as in every case, the agency must be shown, and it must be made to appear by him who asserts such agency that the declarations offered in evidence were within the scope of such agent’s authority. That was done in this ease by proof that Bryson was the “general manager” of appellant. The undisputed evidence shows that appellant, a corporation, was engaged in the business of buying and selling oil in San Angelo, and that Bryson was its “general manager.” No effort was made to prove any limitation of his authority. In the absence of such proof, what does the term “general manager” imply? “The term ‘general manager of a corporation,’ according to the ordinary meaning of the term, indicates one who has general direction and control of the affairs of the corporation.” Railway Co. v. McVay, 98 Ind. 398, 49 Am. Rep. 770. “A general manager of a business corporation is a person having general charge of those business matters for the carrying on of which the corporation was incorporated.” Gas Co. v. Lansden, 172 U. S. 534, 19 Sup. Ct. 296, 43 L. Ed. 549. “The general manager of a corporation is the person who has the most general control over the affairs of the corporation, and who has knowledge of all of its business.” Mining Co. v. Smelting Co., 16 Colo. 118, 26 Pac. 327: Kansas City v. Cullinan, 65 Kan. 68, 68 Pac. 1102. “The term ‘general manager’ is synonymous with general agent. A general agent is virtually the corporation itself.” Railway Co. v. Reisner, 18 Kan. 460. “A general agent is one who is employed to transact every business of a particular kind;” i. e., in this case the oil business. Gibson v. Hardware Co., 94 Ala. 352, 10 South. 307; Edwards v. Ins. Co., 100 Mo. App. 695, 73 S. W. 885; Lobdell v. Baker, 42 Mass. 202, 35 Am. Dec. 358; Baldwin v. Tucker, 112 Ky. 282, 65 S. W. 842, 57 L. R. A. 451; Mfg. Co. v. Ins. Co., 3 S. D. 205, 52 N. W. 867; Sawin v. Bldg. Ass’n, 95 Iowa, 477, 64 N. W. 403; Robinson v. Ins. Co., 128 Ala. 477, 30 South. 666; Mortgage Co. v. Cody, 135 Ala. 622, 33 South. 834; Biscuit Co. v. Dugger, 40 Or. 362, 67 Pac. 32; Scott v. McGrath, 7 Barb. (N. Y.) 65; Stock Yard Co. v. Mallory, 157 Ill. 554, 41 N. E. 891, 48 Am. St. Rep. 341; De Turck v. Matz, 180 Pa. 347, 36 Atl. 863. “A general agent is usually authorized to do all acts connected with the business in which he is engaged.” Godshow v. Struck & Bro., 109 Ky. 285, 58 S. W. 781, 51 L. R. A. 668. In the case of Railway Co. v. McVay, supra, the court said: “There is no direct evidence of such authority (to pay for nursing a railway employe) having been delegated to the general manager of the corporation; so there is no direct evidence what his duties were, from which his authority might be inferred. Can we presume from the title ‘general manager’ that the duties and powers of the general manager were sufficiently comprehensive to include contracts for the nursing of a person wounded on appellee’s road.” After ,a full discussion of the matter, the court answers this question in the affirmative. In Mort. Co. v.' Cody, supra, the court said: “The powers of a general agent are prima facie coextensive with the business entrusted to his care.”
Believing, as we do, that the legal question involved in this case is well settled, and that there is no conflict between the opinion of this court in this case and that of any other of the appellate courts of this state in any other case, the motion to reconsider our judgment in overruling the motion for a rehearing herein and to certify this case to the Supreme Court is overruled.
Motion overruled.
