| Ark. | Mar 9, 1914
(after stating the facts). It is first insisted by counsel for plaintiffs that defendant set up title to. the shells under a contract of purchase made in 1911 and at the trial undertook to prove title under a contract made in 1912. On this account they contend that the judgment should be reversed. It is true the answer of the defendants alleges that they made a contract in 1911 with plaintiffs for such shells as the defendants desired, but the answer further alleges that about the last of March, 1912, after defendants had taken and paid for a large lot of shells under the former agreement “defendants purchased from plaintiffs all the Corley shells that were left at the agreed price of fifteen dollars per ton; that they weighed up a part of such shells on said date, and that the shells in controversy are a part of the said Corley shells purchased about the last of March, 1912.” Therefore the defendants were entitled to judgment, under their answer, provided the proper proof was made to sustain the averments made in it.
It is next insisted by counsel for plaintiffs that there is no evidence to support the verdict. E. M. Permisión was the agent for the plaintiffs for the purchase of mussel shells and had charge of all territory as far north as the Illinois River, and all the Ohio, Wabash, Illinois and Mississippi Rivers, and all the South, Tennessee and Kentucky included. He testified that the defendants applied to him to purchase the shells in controversy and he refused to let them have them after the settlement of March 19, 1912, was made. Louis Igert, another employee of the plaintiffs, testified that in the latter part of March or the first of' April, 1912, in company with one of the defendants, he went to the place where the shells in controversy were piled on the bank of the river for the purpose of weighing them out and selling them to the defendants; that they weighed out about five hundred pounds of the shells and that the defendants refused to take them in the condition they were in; that there was no sale of the shells made by him to the defendants, and that they were never weighed out or delivered to them.
On the other hand, the defendants introduced testimony tending to show that some time in the early part of April, 1912, the defendants went with Mr. Igert to the place on the river bank where the shells were piled up and agreed to buy them at the price of fifteen dollars per ton,' delivered at that place; that they began to weigh the shells out and had weighed about 580 pounds when one of the defendants suggested that there was so much nmd in the shells that they should wait until they had dried out before they finished weighing them; that Mr. Igert agreed to this and told him that he could consider that the shells belonged to them under the agreement; that he told them to weigh them out when they got dry and that he would take their weights.
Under this testimony, the jury might have found that the shells were delivered to the defendants. In the case of McDermott v. Kimball Lumber Company, 102 Ark. 344" date_filed="1912-02-12" court="Ark." case_name="McDermott v. Kimball Lumber Co.">102 Ark. 344, the court held:
“Where property is of such a nature and so situated that actual delivery can be made, that is necessary; but where the property is too ponderous and bulky for an ■actual change of its possession, a symbolical or constructive delivery, as by placing on it outward indicia of a change of possession and ownership, will be as effective as an actual delivery. ’ ’
Igert, at the trial, also gave the following evidence in reference to a sale of the shells to the defendants:
Q. After you had been to the telephone office, didn’t you come back and tell them it would be all right?
A. I don’t remember.
Q. You had the right, didn’t you?
A. I guess I did; I don’t remember.
Q. You had the right to weigh these shells and turn them over?
A. I suppose I did; yes, sir.
Mr. Denniston was the general agent for the plaintiffs in buying shells in the State of Arkansas, and had charge of that territory. He admitted that he had told Igert to let the defendants have some other shells, and also admitted that other shells which they had purchased from Corley had been sold by Igert for the plaintiffs to the defendants and had been delivered to them. Under this proof, although Igert testified that he did not have authority to sell the shells to the defendant, the jury might have found that he did have such authority, or at least that it was within the apparent scope of his authority to sell and deliver them to the defendants.
In the case of Oak Leaf Mill Co. v. Cooper, 103 Ark. 79" date_filed="1912-03-25" court="Ark." case_name="Oak Leaf Mill Co. v. Cooper">103 Ark. 79, the court said:
“A principal is not only bound by the acts of the agent done under express authority, but he is also bound by all acts of a general agent which are within the apparent scope of his authority, whether they have been authorized by the principal or not, and even if they are contrary to express directions. The principal in such case is not only bound by the authority actually given to the general agent, but by the authority which the third person dealing with him has a right to believe has been given to him. Brown v. Brown, 96 Ark. 456" date_filed="1910-11-14" court="Ark." case_name="Brown v. Brown">96 Ark. 456. The question in all such cases relative to the acts of a general agent is, not whether the authority of such agent was limited, but whether the person dealing with such agent had knowledge or notice of such limitations of his authority. In the absence of notice to the contrary, a person dealing with an admitted agent has a right to presume that he is a general agent, and that he is acting within the scope of his authority. 1 Clark & Skyles on Agency, § 200; 31 Cyc. 1645. If the authority of such general agent is actually limited, the principal is still bound for any act done or contract made within the apparent scope of Ms authority, in the absence of notice to the contrary by a person dealing with him. The burden is upon the principal to show such notice to or knowledge by the person dealing with him. ” • •-
The court, on its own motion, gave, over the objection of the plaintiffs, instructions Nos. 4 and 5, which are as follows:
“If you find from the evidence that defendants purchased from Louis Igert, and that Igert was the agent of the person entitled to the possession of the shells, whether plaintiffs or William Corley, the balance of shells remaining on bank of Black River at Booser’s Switch, and further find that Louis Igert was at the time acting within the scope or apparent scope of his authority as such agent, and that it was agreed between the parties at the time that such shells, while at said place, were the property of defendants, you will find for defendants” (No. 4).
“If you find from the evidence that Louis Igert had no authority from plaintiffs or William Corley, the person or persons entitled to the possession of the shells, to dispose of the shells in controversy, and that defendants had knowledge of such limitations of authority, or if you find from the evidence that Igert was authorized by plaintiffs or William Corley to weigh the shells at Booser’s Switch and to sell and deliver such shells according to such weight to defendants, and that Igert was only authorized to make "sale under such condition, and that such fact was known to defendants, you should find for plaintiffs” (No. 5).
It is contended by counsel for plaintiff that these instructions are in conflict with each other. They contend that the instruction No. 5, in effect, tells the jury that Igert must not only have not had authority to sell the shells to the defendants, but that the defendants must have had knowledge that he had no authority, before a verdict could be returned for plaintiffs. They contend that the instruction, in effect, told the jury that Igert did have apparent authority, either from the plaintiffs or Corley. We can not agree with them in their contention. According to the evidence of the plaintiffs, Louis Igert had no authority, either from them or from Corley, to dispose of the shells in controversy, and instruction No. 5 simply told the jury that if the defendants had knowledge of such limitations of the authority of Igert their verdict should be for the plaintiffs. This instruction was correct under the principles of law decided in the case last quoted from. Instruction No. 4 submitted to the jury the question of the apparent scope of the authority of Louis Igert. That is to say, it was the contention of the defendants that they had no knowledge that the plaintiffs had limited the authority of Denniston or of Igert, and they sought to defeat the action of the plaintiffs on the ground that, according to the testimony introduced by them, Igert, at the time he sold and delivered the shells to them, was acting within the apparent scope of his authority as agent for the plaintiffs, and this theory of the case they had a right to have submitted to the jury, which was done under instruction No. 4. The two instructions are not in conflict and submitted the respective theories of the parties to the jury.
We find no prejudicial error in the record, and the judgment will be affirmed.