Fuller v. Ellis

| Vt. | Jan 15, 1867

The opinion of the court was delivered by

Wilson, J.

It does not appear that the defendant, prior to October 9th, 1860, had or exercised any general authority or discretion in the business for which he was employed, but it would seem from the language of the report that the defendant, from the time he commenced assisting the plaintiff in selling the horses to the 9th of October acted with the plaintiff and under special instructions.

The primary obligation of an agent, whose authority is limited fey instructions, is to adhere faithfully to those instructions, for if he unnecessarily exceed his commission he renders himself responsible to the principal for the consequences of his act. This case, we think, is not an exception to the general rule. It is claimed by the defendant that a fair interpretation of the authority under which he took the horses to Richmond, and the letter of November 4th, 1860, justify his subsequent acts. The report finds that on the 9th day of October, 1860, the defendant, by direction of the plaintiff, took two horses, (a black stallion aiid a bay gelding,) to Richmond to exhibit at the Virginia State Fair, which was to be held about that time, and to sell them if possible, the plaintiff directing the defendant to do the best he could with them. These instructions authorized the defendant to exercise some discretion as to the price for which he might sell the horses, with a view to the plaintiff’s interest, but they did not authorize the defendant to go with them beyond Richmond. The letter of November 4th, 1860, authorized the defendant to take the horse remaining unsold from Richmond to Petersburgh. The plaintiff by this letter informed the defendant that he had seen Messrs. Bell and Raglin, of Petersburgh, and they thought the horse could be sold there, and the plaintiff suggested that he thought it would be well for the defendant to see them, that they might inform the defendant of a place at which he could sell the horse. The referees found that the defendant received no instructions whatever in relation to the horse from the time he left Baltimore, except those contained in the foregoing letter, but, acting on what he supposed to be his authority, he immediately on the receipt of the letter, went with the horse to Petersburgh, in Virginia, and saw the Mr. Bell referred to and learned from him there was no prospect of selling the horse at that place. The letter did not authorize the defendant to go beyond Petersburgh, or that vicinity, with the horse unless he was directed by Bell or Baglin to a place where they thought he could sell him. It does not appear, nor is it claimed by the defendant that he made any inquiry of Bell or Baglin, or that either of them gave him any information, or made any suggestion to the defendant as to a place where he could sell the horse, nor does it appear that the defendant had when he left Petersburgh, any information or even supposition as to a place where the horse could be sold. Under such circumstances the duty of the defendant was too plain to have admitted of a doubt. The facilities, at that time, for sending communications by mail and by telegraph, render his neglect to write or telegraph to the plaintiff inexcusable, and we are entirely agreed that his subsequent acts were without authority. It is claimed by the defendant that the authority under which he acted was not precisely limited or defined, and that he was entitled to the exercise of a reasonable discretion in its execution. It is doubtless true that where the principal’s instructions to his agent are equivocal, the agent has the benefit of the doubt, but we have not been able to discover anything ambiguous in the instructions under which the defendant was authorized to act, nor does it appear that he was in any way misled by them. The supposition of the defendant as to his authority had reference to his journey from Biehmond to Petersburgh, but the referees have not found, nor is it claimed by the defendant that his journey beyond Petersburgh was the result of any misapprehension on his part as to ^/fiie extent of his authority. If we should treat the defendant as a general, agent it would not aid him in his defense, for a general agent is bound to exercise a sound discretion in the business in which he is engaged, and should conduct it as a prudent and discreet man should manage his own affairs. The facts disclosed by the referees show that the defendant did not exercise a sound discretion, nor act with common prudence, but on the contrary it appears that he acted not only without authority, but regardless of the interests ^.of the plaintiff. It is true that the referees found that the defendant acted in good faith in going beyond Petersburgh, but this was nothing more than he was required to do whether the journey was with or without authority. It is further true that the defendant was also required to follow the instructions of his principal so far as they were explicit, and wherein he was allowed the exercise of any discretion he was required to exercise it with common prudence, hut it appears that he did neither.

It is insisted by the defendant’s counsel that the payment of money to the defendant’s wife under the circumstances mentioned in the report was a recognition and adoption by the plaintiff of the acts of the defendant. The report finds that when the defendant was at Fair Bluff, on his way from Wilmington to Florence, he wrote to his wife to call on the plaintiff for money on his account, which she did, and the plaintiff paid her ten dollars on the defendant’s account. The report says : “the defendant’s wife communicated the contents of the letter to the plaintiff, when she applied to him for the money, according to the directions contained in the letter.” The. report discloses that when the defendant’s wife applied to the plaintiff for the money she told him the defendant was at Fair Bluff, and that he was going to Columbia, in South Carolina, to endeavor to sell^the horse, but it does not appear that the plaintiff was informed at that time by what authority the defendant claimed to have taken the horse to Fair Bluff, whether Bell or Raglin had directed the defendant with the horse, nor whether the defendant claimed, or would claim, to act as the agent of the plaintiff in his journey with the horse beyond Petersburgh; nor does it appear whether the ten dollars was paid to the defendant for unauthorized expenses which had accrued, or for expenses which should be incurred by the defendant in this wandering, or paid to him for his services and expenses which were performed and paid out by him while acting within the scope of his authority. The referees do not say in their report that they found the plaintiff recognized or adopted the acts of the defendant in going with the horse beyond Petersburg, nor have they reported facts which, in our judgment, constitute a recognition of the journey beyond that place. The mere payment of the money, without anything to show for what purpose it was paid, is not sufficient to constitute a recognition of the unauthorized acts of the defendant, but it should also appear that he made the payment with full knowledge of the facts intending to ratify what the defendant had done, or that he made it to enable the defendant to continue his journey in pursuit of a purchaser, or that he in some other way sanctioned the defendant’s acts. The plaintiff ought not to be cheated into a recognition of the defendant’s authority.

The judgment of the county court is reversed and judgment fair the plaintiff to recover $598.07 damages and his costs»