38 Tex. 314 | Tex. | 1873
There is error in the ruling of the District Court in this case in sustaining a motion to strike out certain portions of defendant’s answer. The answer charges, substantially, that the plaintiff, if he ever was the agent of defendants, “voluntarily abandoned their service and combined and confederated with one Patillo for the purpose of cheating and defrauding them, in which confederation he turned over to said Patillo a large amount of notes and other property belonging to defendants, whereby they were greatly damaged, and that he thereupon voluntarily engaged himself in the service of said Patillo as a sub-agent,” etc. If this plea is true, it forms a complete bar to any claim for compensation for services. (Paley’s Agency, 104; Principal and Agent, 356; and Comyn on Contract, 1 Vol., 371.) The truth of such plea must depend upon the testimony, and if the plea were in fact untrue, still it would be error in the court to strike such a defense from the pleadings. The order of the court striking out this plea is not in the transcript, yet the plaintiff below claimed that it was stricken out, and the ruling of the court on the objection raised to the evidence of Ferguson, which was offered to prove the truth of that plea, clearly shows that the court considered it had been stricken out. We think the plea a good one, and the court erred in rejecting evidence of the truth of the same.
Upon the trial the plaintiff claimed compensation for services as agent of defendants for the years 1860 and 1861, and that the contract of agency for those years was
There is another fatal error in the rulings of the court which will require a reversal of the judgment. The plaintiff claims compensation for services rendered in pursuance of a contract made between the plaintiff and one McKay, who, it is claimed, was the general agent of defendants, therefore authorized to bind his principals in contracts with sub-agents; but when McKay’s contract of agency with defendants, which contained a very specific enumeration of his powers and authority as such, was offered in evidence, on objections raised it was ruled out. This certainly was such an error as will require correction. The plaintiff claimed by reason of his contract of sub-agency with McKay, the general agent of defendants, and yet the court ruled out proof of the authority of that “general agent.”
The general rule of agency and trusts is, that an agent or trustee cannot delegate the authority conferred upon him without an express power to that effect; and where any rights are claimed under the exercise of that authority, the power of delegation must be expressly alleged
We think, therefore, that the plaintiff below, as he claims under a contract with McKay, as the agent of defendants, should have alleged and proven that McKay, in 1860 and 1861, had express authority to contract with him as sub-agent, so as to bind his principal; and under defendant’s general denial of plaintiff’s agency, we think they should have been permitted to prove the character of McKay’s authority as their general agent, and this could not be done with more certainty than by the production of his executed power or contract as such agent. The court therefore erred in sustaining the objection to the introduction of McKay’s contract with the defendants. But the contract between McKay and appellants, existing in 1861, as exhibited in a bill of exceptions taken on the trial, shows affirmatively that at that time he, Me-'
There is also an error in the charge of the court in regard to the three hundred and fifty dollars paid by appellee to McKay, which, if as an abstract proposition of law it were unobjectionable, yet which, when applied to the facts of the case, was irrelevant and may have misled the jury. The only testimony in regard to that transaction was given by the son of appellee, who testified in substance that in the fall of 1860 McKay was going to Chicago, and that the plaintiff advanced to him, for the defendants, a sum of money, which, after referring to the book, he said was three hundred and fifty dollars. In his statement there is no intimation that the money was advanced at the special instance and request of defendants, or that they knew anything about it, and indeed his whole statement would naturally lead to the conclusion that the defendants were ignorant of the transaction. Under these facts the court charged the jury that “if they believed from the evidence plaintiff advanced any money for defendants, at their request or of their authorized agent, they will find the amount so advanced, with interest,” etc. There can be set up no pretense, from the evidence, that defendants had requested any such advancement; and the latter clause of the charge cited is not correct law, unless the court meant by “their authorized agent” an agent specially authorized to borrow money, since it is a general principle of the law of agency that it requires special authority to authorize an agent to borrow money on the responsibility of his principal.
In Theobald & Hammond’s work on Principal and Agent, p. 337, it is said: “If an agent undertake, for his principal, to pay a sum of money, without any authority, he alone is liable on the promise, and so if without any authority he borrow money.” The same doctrine
From the evidence in this case, it is fair to suppose that the advance made to McKay was primarily for the benefit of the agent and not his principal, and until it is proven that he had special authority to borrow on their account he alone can be held liable for the advance made. There was no error in the ruling of the court in excluding the books offered by the plaintiff below. They were not sufficiently proven up to entitle them to be introduced in evidence, and indeed, from the very imperfect description of them by the witness, it is quite doubtful whether they could be proven up so as to be admissible.
For the errors herein indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.
