81 Ind. App. 682 | Ind. Ct. App. | 1924
Complaint by appellant to recover for merchandise manufactured by appellant and sold to appellee. Appellee filed an answer in three paragraphs, the first being a general denial, the second payment and the third estoppel. A demurrer to the third paragraph of answer being overruled, a reply of general denial closed the issues. The cause was tried by jury and resulted in a verdict and judgment in favor of appellee. In connection with the general verdict, the jury answered certain interrogatories. At the proper time appellant orally moved the court to require the jury to more fully answer interrogatories Nos. 12, 13 and 14, “for the reason that the answers are not fact answers.” This motion as well as a motion for a new trial being overruled, judgment was rendered for appellee.
The errors assigned are that the court erred: (1) in overruling the demurrer to the third paragraph of answer; (2) in overruling appellant’s separate and several motion to require the jury to more fully answer each of the interrogatories Nos. 12, 13 and 14; (3) in
It appears from the pleadings, the answers of the jury to the interrogatories and from the evidence that appellee paid E. C. Cann, who was appellant’s superintendent, the amount due appellant by two checks, one check being for $1,334.56 payable to “E. C. Cann, superintendent Indiana Fibre Products Company”, and one for $13.72 payable to “E. C. Cann”; that Cann received .the cash on these checks and converted the same to his own use. The result of this appeal depends upon the authority or apparent authority of E. C. Cann to make the collection from appellee. Each of the assignments of error relates to this question. We shall therefore consider them together..
Appellant owned and operated a factory at Marion, Indiana, where it manufactured fibre and corrugated paper boxes or containers used in shipping merchandise. Appellee owned and operated a plant at Urbana, Indiana, where it manufactured certain goods and products which were shipped by freight and otherwise to its customers. The president of appellee company owned and conducted another business under the name of Cyclone Seeder Company. The business of appellee was separate and distinct from that of the seeder company, but the businesses of both were conducted from one and the same office.
In February or March of 1918, E. C. Cann called at the office of appellee company, and, in a conversation with Dr. Speicher, the president of appellee, who, as stated, was the sole proprietor of the seeder company, he informed Mr. Speicher that appellant was manufacturing fibre boxes and was interested in furnishing them to Mr. Speicher for his business. Mr. Speicher at this time informed Mr. Cann that he would be in the market
Appellant packed the three coops in boxes and shipped them as directed. A great many letters were thereafter exchanged between the parties concerning the size of boxes to be made for appellee and the seeder company as they had to be made specially to fit the articles manufactured by the parties. Both the seeder company and appellee gave orders for boxes during the summer of 1918, and paid for them by checks made payable to appellant and sent to appellant by mail. These checks were received by áppellant, and were indorsed as follows: “For deposit only with The Marion National Bank, Marion, Ind. to the credit of Indiana Product Co. G. A. Bell, Pres.” All of the letters written by appellant to appellee and the seeder company were signed “Indiana Product Co. Per E. C. Cann, Superintendent” or “Indiana Fibre Product Co. E. C. Cann,” with the exception of two, one of which, dated July, 1918, notified appellee that certain sample boxes
The other letter was dated October 6,1918, that being Sunday. It was written in longhand, on the regular letterheads of appellant and signed “E. C. Cann.” This letter, omitting the formal parts, reads as follows: “Gentlemen: We are loading your seeder and coop boxes today, and will ship tomorrow, Monday. When you get the bill for these they will not all be billed to you but all your orders will be in these cars, but could not bill all on this bill for reasons that I will explain to you later. You can pay this bill in time to take your discount and then you can take care of the next bill when you receive it. Car C. P. 207132 contains all your seeder boxes and a few of your coop boxes and car L. R. & N. 5542 contains the balance of your coop boxes.
Yours Truly,
E. C. Cann.”
On Sunday October 6, 1918, two carloads of fibre and corrugated paper boxes were loaded by appellant and on the next day were shipped to appellee. The seeder company had placed an order for boxes with appellant and these boxes were placed in one of the cars so loaded and shipped to appellee with the boxes which had been ordered by appellee. On October 7, 1918, appellant mailed appellee two invoices covering part of the boxes that day shipped. One of these invoices was for $910.88 and the other was for $63.85. Appellee mailed a check to appellant in payment of these invoices in time to take advantage of the discount. On October 24, 1918, Mr. Cann called at the office of appellee and presented an invoice for the balance of the boxes shipped to appellee October 7. This invoice called for $1,228. He also had with him and presented an invoice
Appellant contends that under the facts as alleged in the third paragraph of answer, as found by the jury in answer to the interrogatories, and as shown by the undisputed evidence, the court erred in overruling the demurrer, in overruling the motion for judgment non obstante, and in overruling the motion for a new trial, upon the theory that Mr. Cann was employed to and performed no duties other than to act as factory superintendent and that he had no authority to collect money, or take or receive checks payable to him, or to appellant in payment of debts due from customers of appellant.
Appellee contends that Mr. Cann was a general agent of appellant and, as such, had authority to make collections and, if he was not a general agent in fact, he was clothed with apparent authority to make the collection from appellee.
Before entering into a discussion of the law, it may be well to again state that in all of the dealings between appellant and appellee and the seeder company, Mr. Cann was the only person connected with appellant with whom the latter companies came into contact. Mr. Cann called at appellee’s office on three different occasions prior to the time he received the checks heretofore referred to. It appears that when either appellee or the seeder company would write to appellant, their letters would reach Mr. Cann, as he answered all of such letters as called for an answer. Attention has been called to one letter that was not written by him,
The Supreme Court of the United States in Baltimore, etc., R. Co. v. Baugh (1893), 149 U. S. 369, 13 Sup. Ct. 914, 37 L. Ed. 772, which was a negligence case, said: “The directors are the managing agents; their negligence must be adjudged the negligence of the corporation, although they are simply agents. So when they place the entire management of the corporation in the
The Supreme Court of Nevada in Sacalaris v. Eureka, etc., R. Co. (1883), 18 Nev. 155, 1 Pac. 835, 51 Am. Rep. 737, in discussing the powers and authority of the superintendent of a railroad said: “Railway corporations enter so largely into the business transactions of the country that courts should take judicial notice of the authority of their managing officers, upon the same principle that judicial notice is taken of the duties of officers of banks and other agents, whose authority is so generally understood as not to be subject of inquiry. It is a matter of common knowledge that the superintendent of a railroad corporation is empowered to conduct its ordinary business transactions. * * * When an agent is clothed with a title implying general powers, as superintendent, the business public and courts may fairly presume he is what the corporation holds him out as being. Webster says, a superintendent is ‘one who has the oversight and charge of something with the power of direction.’ 'An agent having the oversight and charge, with the power to direct, has a general and discretionary power within the scope of his agency.” It appears to us that there is some evidence that appellant held Cann out as a person of large power, in the sense in which the word “superintendent” implies' large powers.
While all the letters written to appellee were written on letterheads which indicated that George A. Bell was the president and general manager of appellant company, they were, with one exception, signed, “Indiana Fibre Product Co., per E. C. Cann, Superintendent.” While Mr. Bell testified that Mr. Cann,
While the authority of an agent must proceed from his principal and, in ascertaining the extent of the agent’s authority, we must look to what has been expressly or impliedly authorized before the act of the agent in question, or to the conduct of the principal after the act in relation thereto by way of ratifying it; it is also true that the liability of the principal for the conduct of the agent is not to be determined solely by the authority actually given to the agent, but that the principal will be bound as if he had conferred the authority which a third party dealing with the agent was justified in believing to have been given to the agent. There must be an appearance of authority caused by the principal, and the agent must have acted within the scope of such authority. McCaskey Register Co. v. Curfman (1910), 45 Ind. App. 297.
Appellant insists that the receipt of the letter written on Sunday in longhand, together with Mr. Cann’s explanation of the reason why the invoice of October 7, was not for the whole of the goods shipped and as to why he wished the check made payable to him was so unusual, extraordinary and questionable as to have put
Appellant also contends that even though it should be held that the evidence is sufficient to show that Mr. Cann was clothed with' apparent authority to collect, he had no authority to accept a check from appellee for that purpose, and that the delivery of a check to Mr. Cann, payable to his order, was not a payment of the debt. Appellant says that if it be assumed that Mr. Cann had implied or apparent authority to receive payment from appellee, appellee would only be justified in paying him in cash of by a check payable to the order of appellant and that it had no authority to give him a check payable to himself, as superintendent of appellant company. As between two innocent persons, one of whom must suffer loss, the loss should fall on the principal who has armed the agent with apparent authority and thus enabled him to obtain the advantage of the person with whom he deals, rather than on the other innocent party, where the agent acts within the apparent scope of his authority, and there is nothing in the transaction to put the other party on notice that the agent is exceeding his authority. Nat. Bank of San Mateo v. Whitney (1919), 181 Cal. 202, 183 Pac. 789, 8 A. L. R. 298. In the case just cited, a payment made by check which was converted into cash by the agent and embezzled was held to be a payment. See Griffin v. Erskine (1906), 131 Iowa 444, 109 N. W. 13, 9 Ann. Cas. 1193, where a draft was made payable to an officer of a bank instead of the bank. See, also, Brown v. Grimes (1921), 74 Ind. App. 655, where
The evidence in this case is ample to sustain the jury in finding that Mr. Cann was clothed with at least apparent authority to make collection, and we cannot say, as a matter of law, that his explanation as to why appellant had not included in the invoice all of the goods shipped, was so unusual that appellee for that reason made the payment at its peril.
Being of the opinion that substantial justice has been done, we hold there was no reversible error in the giving or refusing to give any of the instructions. The intervening errors if any in overruling the demurrer to the reply and the motion to require the jury to make its answer to certain interrogatories more specific would not constitute reversible errors. Neither was there any error in overruling the motion for judgment non obstante.
Judgment affirmed.