Freiberg, Klein & Co. v. B. H. & S. I. Co.

63 Tex. 449 | Tex. | 1885

Willie, Chief Justice.

This suit was brought to recover the value of certain goods alleged to have been sold by Freiberg, Klein & Co. to the appellee, and the defense was rested upon a general denial of the allegations of the petition.

The evidence fully proved the sale of the goods to one J. H. Pierce, and it was sought to fix the liability of the appellee by showing that in the purchase of the goods he was acting as its agent.

Under the general issue, therefore, it was incumbent upon the appellants to show either that Pierce was actually the agent of the company or that it held him out as its agent to the world, or at least to parties dealing with him on the faith of such agency.

Pierce was in the apparent control of the Beach Hotel at Galveston, which belonged to the appellee, and these goods were bought by him for use in that hotel.

An important question in the case was as to the capacity in which he controlled this establishment, whether as lessee and on his own account, or whether as manager and agent of the company, appellee in this cause.

It was proved that when the hotel was about completed the company tried to get a lessee for it, and with that view opened a correspondence with Pierce and others. An agreement was finally made with him to take it from July, 1883, to April, 1884, he to pay the owners twenty per cent, of the gross results of the whole business after deducting §200 per month for his services. It was fully shown that the appellee had nothing to do with the hotel during the time it was under the control of Pierce, and no other interest in it except such as grew out of the company’s right to twenty per cent, of the gross receipts.

The contract appears upon its face to be one of lease, and this interpretation of it is aided and made certain by the fact that it was so treated by the parties thereto. The direct testimony of the persons having most knowledge of the agreement and the manner in which it was construed is directly to the fact that it was intended as a lease and operated as such during the whole time it was in force. Under such circumstances, in a contest between the company and Pierce, neither party could have insisted upon a different construction or claimed any benefit from having it declared a different contract from the one that they had made and had treated as a lease from the beginning.

This being the case, third parties could not insist upon a different and unauthorized construction in order to give them a right against one of the parties which was dependent wholly upon the relation which the makers of the agreement bore towards each other.

Upon the state of the evidence bearing upon the real nature of the contract, the charge of the court was therefore correct and unobjectionable. It submitted fairly to the jury the question of whether Pierce was lessee or agent, and did not attempt to control their judgment upon the facts relating to that question.

The plaintiffs, however, were entitled to recover, notwithstanding Pierce was lessee and not agent of the company, provided he was held out or represented to the world or to the plaintiffs by the company as their agent for such purchases, at or before the time the goods were purchased.

There does not seem to be any evidence of such conduct on the part of the appellee, unless the letter from, the appellants to Sinclair of June 29, 1883, and the latter’s reply, can be considered as such. These letters amount to nothing more than a solicitation of business from the proprietors of the hotel, and an answer showing that applications of that sort must be made to Pierce, wrho was in charge of such business. There is no admission, tacit or otherwise, in Sinclair’s reply that Pierce was the agent of the company, but a mere recommendation to him of Freiberg, Klein & Co. as good friends of the company. It was no more than what a disinterested person might have said in recommending another to the good offices of a third party, and furnished Freiberg, Klein & Co. no ground for concluding that Sinclair’s company were conducting the hotel, and Pierce was their agent in managing it. That it did not lead them- to this conclusion is evident from the fact that they did not charge the first sales to the company, but to Pierce himself. That they subsequently changed the style of keeping their accounts for goods bought by Pierce must have been caused by something else, and could not have been induced by these letters.

"We think, therefore, that the court did not err in excluding them from the consideration of the jury, in case they found that the contract was a lease and not an agency. And for the same reason the court did not err in refusing to charge upon the subject of a liability created by holding Pierce out to the world as agent of the company, as there was no evidence of that fact before the jury. If it had been shown that the subsequent correspondence of Sinclair with Pierce and others had been made known to the appellants before, making these sales, then there might possibly have been some evidence upon which to have based such a charge.

¡Neither did the court err in refusing to charge as asked by the plaintiffs. Charge ¡No. 1 so asked was fully and more specifically given in the general charge.

Charge ¡No. 3 should not have been given, because there was no fact before the jury supporting such a charge, as the letters to which we have alluded, directed to Sinclair as president, and replied to by him as such, were unimportant, and it therefore made no difference whether or not they were legally binding upon the company.

We regard the remark made by the judge below in admitting the subsequent letters to the jury as an improper one, and had it been excepted to at the proper time, and the letters had been properly before the jury, we should feel that it was an error for which the judgment should be reversed. Evidence should be admitted, if at all, without comment from the judge calculated to increase or decrease its weight with the jury.

But the bill of exceptions shows that no objection was taken to the language until four days after the trial had occurred. It should have been taken immediately upon the judge making use of the language, so as to have given him an opportunity of correcting his remark, and placing the evidence upon its proper footing before the jury.

Besides, the letters were not proper evidence, and the remark, if it caused the jury to entirely disregard this evidence, worked no damage to the plaintiffs below. If admissible at all, these letters could be received only for the purpose of impeaching Sinclair’s testimony, and no proper predicate had been laid for that in his previous examination.

This disposes also of the question raised as to the affidavit of the jurors in reference to .the effect the remark of the judge had upon them in forming their verdict, without the necessity, of considering the general right of a juror to impeach his verdict for a misunderstanding of the language of the judge before whom the case was tried..

• If these letters had caused them to find a verdict for the plaintiffs, their verdict would have been unsupported by testimony, and should have been set aside.

There is no error in the judgment, and it is affirmed.

Affirmed.

[Opinion delivered March 6, 1885.]