62 Pa. Super. 348 | Pa. Super. Ct. | 1916
Opinion by
At the time this cause of action arose, the defendants were the owners of a recently erected theatre, in Atlan
The cáse went to trial on the issue thus raised, and was sent to the jury on this theory, Judge MoMichael saying: The plaintiff is bound to show two things in order to recover in this case. He is bound to show that Magaziner, the architect, held himself out as having authority from Seltzer Brothers — that he had the authority from Seltzer Brothers, and also that the course of dealings between the parties were such that a prudent, ■ reliable, discreet business man would be justified in assuming that the architect was the agent of Seltzer Brothers to do this work.
The case presented here is within much narrower bounds, as the defendant positively denies that the architects were authorized to act for them in the matter in dispute, in which contention they were corroborated by the direct testimony of the architect and one other witness, and supplemented with the additional fact that in each of the other instances of departure from the plans and specifications, the plaintiffs required the previous written authorization of the architect to do the extra work. The measure of proof required in such cases is not fixed by any rigid standard, and in this case the act of the architect on which the plaintiff relied was a known departure from the course of business between the parties ■ — in reference to extra work and the character of the agent’s authority in relation thereto.
To render a principal liable, there must be proof of agency, either express or implied; but the fact cannot be proven by the declarations of the alleged agent, nor by his acts done without the authority of the principal, but, it is always competent for a principal to show the scope of the agent’s authority: Penna. Telephone & Sup
In the case before us, there was no course of dealing, as this was the sole instance in which the agent is alleged to have acted on apparent authority, it is plain that the doctrine under which an apparent authority may be implied from a holding out, or course of dealing would not be applicable. The liability of the defendants depended upon the solution to the dispute of fact between the plaintiff and the architect, in regard to the order to do this work, and this question was for the jury alone. Where an agency is to be implied from the conduct of the parties, or is to be established by witnesses, the fact and scope of the agency are for the jury: Berkie v. Coleman, 50 Pa. Superior Ct. 105. The jury are to judge of the credibility of the witnesses and of the implication to be made from their testimony; it is error for the court to decide the point as a matter of law: Park v. Kansas City, Etc., Railway Co., 58 Pa. Superior Ct. 419. The controlling question was, whether there was sufficient evidence of authority, actual or implied, to carry the case to the jury, and as there was no pretence of direct authority, the plaintiff should not complain of the court in submitting it to the jury to determine the question of apparent authority, when in his pleadings he only averred, due or direct authority. The parties to the telephone conversation were fully examined, and all that was material was read as a part of the charge of the court, and concluded, — if that testimony is true, and it is not denied by Mr. Cates — he gave accounts of conversations in rebuttal, but did not deny this, the defendants ought to have your verdict, because evidently, if
The case was tried by able counsel and submitted to the jury in a fair and adequate charge.
The judgment is affirmed.