46 Neb. 480 | Neb. | 1895
This was an action of replevin for 250 head of cattle by the defendant in error against the plaintiffs in error. On
On the former hearing the case was decided solely on the effect of the evidence as to a custom in Wyoming whereby the manager of a cattle ranch, it was claimed, had power to sell cattle therefrom, and the court in the former opinion laid down certain rules for the determination of that question alone; that is, as to what was necessary in order to establish a custom vesting- in the manager authority to so dispose of cattle. As now presented an entirely different question arises. On the trial in the district court a special verdict was taken whereby, under instructions conformable to the former opinion, the jury found that no such custom prevailed. The jury also found that prior to the sale of the cattle in question Adams had not, with the plaintiff’s knowledge, performed any similar acts, and under a peremptory instruction there was a -finding
“An act is within the apparent authority of thd agent when it is'of like character as that of prior acts performed by him for the same principal, and which such principal, knowing the same, sanctioned or ratified. The act of an agent within his apparent but not within his real authority will bind his principal only in case the person dealing with such agent knew of such prior acts and dealt with the agent in reliance thereon; and in this case you are instructed that unless you find from a preponderance of the evidence that Thomas R. Adams had prior to the sale of these cattle performed acts of a similar character, and that the plaintiff, after knowledge or notice thereof, sanctioned or ratified such prior similar acts, then you will not be justified in finding that Adams possessed the apparent authority to sell the cattle in question. The defendants cannot base any rights in this action upon the ground that they dealt with Thomas R. Adams as having the apparent authority to sell fhe cattle unless it appears from the evidence that they, or one of them, knew of facts giving such apparent authority to Adams, and acted upon such appearances in the transaction of purchasing the cattle in question.
“The mere fact that the plaintiff had entrusted the care, management, and possession of these cattle to Thomas R. Adams, gave him no authority to sell them. Although
In the light of all the instructions it was clearly the view of the court th&t, it having disposed of the question of actual authority, and the jury having found that no such general custom existed as would, under the former opinion of the court, confer authority upon the agent, no apparent authority could exist unless by the exercise by the agent of such authority in the past, supplemented by knowledge of those acts on the part of the company, and by similar knowledge on the part of defendants, relied on by them in making the purchase. It is familiar law that a principal is bound by the acts of his agent, not only when performed within the scope of his actual or implied authority, but when within the scope of apparent authority conferred upon him by the principal. There have been many cases distinguishing in this respect between a general agent and a special agent; and perhaps this distinction is not without value, although in most cases it simply throws back one step the process of investigation. Indeed, with regard to acts of corporations it has often been said that the only general agents are its directors acting in their corporate capacity. Strict application of the distinction would, therefore, constitute all acts •of corporations not performed under a resolution of the board of directors the acts of special agents, and would require all persons dealing with corporations, except in pursuance of such resolutions, to proceed at their peril. This at one stage of the law might have been a proper doctrine, but the courts must take notice of the fact that the province of corporations is now vastly enlarged; that corporations
It is .argued that one dealing with a corporation is, as a matter of law, bound to take notice of its charter and of its by-laws; that one cannot, therefore, claim any right under the act of an agent of a corporation whose authority by its by-laws is so restricted as to invalidate such an act; that the converse of this must be true, and that, therefore, one dealing with an agent of a corporation, empowered by its by-laws to perform a particular act, may protect himself under- such by-law, although he had no actual notice thereof and although by specific instructions the ageut had been forbidden to perform such act. Following out this line of argument/1 it is contended that the by-law providing for a manager conveyed upon him authority to sell cattle, and that such authority could not, as against a stranger, be restricted by private instructions. To this, however, we cannot assent, although it has received some support from the courts. Certain cases in the New York supreme court lend credit thereto, but they are rudely disturbed by the state
The sale of these cattle was clearly within the power of the corporation, the only question was the apparent authority of this particular agent of the corporation to make the sale, and we may thus divest ourselves in the present inquiry of all investigation as to corporate functions, and consider whether or not there was error in the judgment independent of the fact that the plaintiff is a corporation. A review of the authorities bearing on the question would
It follows that the special findings referred to were insufficient whereon to found the judgment, and that the instruction quoted was erroneous.
Reversed and remanded.