Fisher & Johnson v. Campbell

| Ala. | Jan 15, 1839

ORMOND, J.

That an agent, while he acts within the scope of his authority, can hind his principal, admits of no controversy. The difficulty attending such cases in general, is to ascertain whether the person professing to act as agent had authority to bind his principal, either express or implied. Thus, in this case, the question to he settled is, whether McMoy lmd authority, either express, or arising by necessary implication from his employment by the defendant, to bind him in the purchase of the pork, for the price of which this suit is brought.

The first charge moved for, assumes that as McMoy was the overseer of the defendant, and had the charge of his slaves — as the pork purchased by him from the plaintiffs was wanted for the use of the slaves, qjid "was in fact consumed by them. — that although there was not only no authority given by the defendant to McMoy, to buy the pork of the plaintiffs, but a special direction to get it elsewhere, where arrangements had been made to procure it by the defendant — that unless this fact was known to the plaintiff's, they are entitled to recover.

To a proper understanding of the propriety of this charge, in reference to the facts of the case, it will be necessary to consider separately the different facts and assumptions which it contains.

And first, it cannot be maintained, that the overseer of a plantation, as such merely, has the right to bind his employer by the purchase of articles which he may suppose necessary for the use of the plantation. Such authority is not necessary to enable him to perform the duties incident to his station, -and therefore he cannot be presumed to be invested with such power by his employer.

It seems, however, lo be supposed, that the now residence of the defendant created a necessity for investing him with power to procure by purchase, the necessary subsistence for the slaves under his control. But the fact, that no such necessity existed, is evident from the proof on the record, that the defendant had made arrangements to get the pork at Montgomery, and the only reason assigned for getting it of the plaintiffs is, that it was more convenient to do so.

The master being entitled to the labor of his slaves, is bound by the common dictates of humanity, as well as by the law of the land, to provide for their wants; and if no provision had been made for their subsistence, we should hold that the overseer would have had the right to procure the necessary supplies, on account of the defendant, on the same principle that a father is bound to support his children, and might, under peculiar circumstances, be liable for necessaries furnished to them without his knowledge or consent — (See Owen vs. White, at the June term, 1837, of this court.)

It was also proved, that it was customary for overseers similarly situated, to purchase things necessary for their farms, &c. It will scarcely be contended, that such a usage as this exists in this State, so as to have the force of-law, and be binding on employers generally ; and if not, it proves nothing more, than that some planters are in the practice of sanctioning such purchases, but it by no means follows, that others, who have not assented to it, are bound by i(.

The nest inference of the charge is, “ that as the portó was necessary, and was used for the benefit of the defendant in good faith,” he is therefore liable. The authority of an agent may be implied from his previous employment in similar acts, or from subsequent acquiescence.

Thus, if a servant buy articles without authority, and they come to the master’s use with his knowledge, it will be an affirmance of the act. .But the mere fact, as in this case, that the articles purchased came to the use of the* employer without his knowledge, will not bind him. To maintain that it would have Cruft effect, would foe to permit one to constitute himself the judge of what was1 fit, and proper and necessary for another, without his consent. It would, in substance, be a permission to & stranger, to create the relation of debtor and creditor, probably against the will, and certainly without the consent, of the party sought to be charged.

The mere fact, that the provisions were consumed by the slaves of the defendant, is not sufficient to charge him legally; how far it should bind him in honor, or fn conscience, is a question which the defendant can best solve. It cannot influence the opinion of the court.

The last branch of the charge is stated as a corollary from the preceding propositions: “that any special directions given to McMoy by the defendant, as to the place of purchasing, was wholly immaterial as to this purchase, unless from the evidence, they were satisfied that plaintiffs- were informed, at the time of such sale, of such special directions, and that without- this information, the plaintiffs would be entitled to recover, if the proof was.fully made out,”

We Understand Uie law to be the' exact converse of this proposition, when a person deals with one who professes to be the agent of another person, the person contracting with him, is bound to know the extent of his authority. It has been shown, that McMoy had no’authority to bind the defendant, in consequence of being his overseer: nor was he a general agent/ His agency, then, if any existed, was special, and allpersons dealing with him, as such, are confined to its terms. “An authority delegated to an agent, must be strictly pursued in form, as well as in substance — (See Banoyer vs. Hovey et al. 5 Mass. R. 37.)ff In the same case, it was held, «that an agent, havirig authority to purchase goods to a limited extent, for his/principal, is not thereby entrusted with power by his principal, to borrow money on his credit.”

It is, however, unnecessary to cite cases to establish a principle so consonant to reason and common sense, and so well established as this. It is true, that if one be held out to the world, as the general agent of another, particular Instructions not communicated, will not prevent the agent from binding his principal, even when he acts in disregard of such particular instructions, But in this case, there was no authority delegated to buy the pork, general or special, but a mere direction to obtain it at a particular place, where it had been provided. It follows, therefore, that the seller cannot look to the defendant.

The relevancy of the second charge moved for, is not perceived.

In what manner will it aid in settling the question mooted in this case, to determine whether one partner can receive bis individual debt in payment of goods sold by him belonging to the firm ? It is probable, however, that the fact was Used on the argument of the cause in the court below, as conducing to shew the true character ^>f the transaction, and that the Sale was in fact made to McMoy; but it is not presented here in connection with the controversy, so as to make it necessary that the court should determine it: but if it were important, we should not hesitate to say, that a partner ■ would have such power.

There is no error in the judgment of the' court, and it is affirmed,