198 A. 524 | Pa. Super. Ct. | 1938
Argued March 9, 1938. In this action of assumpsit, the plaintiff obtained a verdict in the court below. A motion to enter judgment for defendant n.o.v. was sustained. The plaintiff appealed.
Plaintiff's claim is based on an alleged oral contract entered into between him and Lloyd Weller, General Superintendent of the American Stores Company in the Scranton district, employing him as manager of defendant's store in Hyde Park, for a period of one year, beginning June 13, 1936, at a salary of $1,196, payable in installments of $23 per week. The plaintiff was discharged November 7, 1936. He sought to recover his wages from that date to March 1, 1937, when he obtained other employment.
The defendant denied the existence of an annual contract and Weller's authority to bind his principal for that term, and alleged that plaintiff was dismissed because he was short in his accounts.
The jury having found in favor of the plaintiff, we must assume that these parties entered into an annual contract: Cathcart v.Sears, Roebuck Co.,
Leonard had been working for the defendant in different stores for five years, originally as a clerk, later being promoted to assistant manager and then manager. During all this period, he, admittedly, was working under a weekly contract. He testified that it was his custom to attend meetings where other managers and employees were present, but that he never knew of any employee who was not on a weekly basis. It thus clearly appears that the normal practice known to Leonard was confined to employment of clerks and managers by the week. A contract for a further period was, therefore, a substantial departure from the customary course that had been followed. Weller's apparent authority was limited to making contracts in the usual form and for the usual term. Conduct within the scope of employment includes only acts of the kind authorized within limits of time and space which approximate those created by the authorization: Section 228, Comment (a), Restatement, Agency. It cannot be said that a year approximated the term of the contracts under which Leonard had previously worked. There is no evidence that justified the conclusion that Weller's authority was unlimited as to the term of employment.
If we adopt appellant's argument, could Weller have bound his principal for two or more years? Certainly, it could not be concluded from the course of conduct followed by the parties in this case that such authority existed. We think the testimony offered to establish implied authority to make the alleged contract was insufficient. *17
The plaintiff called, as his own witness, Weller, who testified that he did not employ the plaintiff for a year, and that he had no authority to hire him or any other employee for a year's service, as that was contrary to the policy of the company. This uncontradicted testimony as to the express authority of Weller bound the plaintiff.
In American Mailing Device Corp. v. Widener et al.,
Groda v. American Stores Co., supra,
If Weller had testified that he had authority to enter into the contract, then, undoubtedly, the verdict of the jury in this case would have to stand.
The appellant argues that he was not bound by Weller's answers given on cross-examination, as they were but conclusions or opinions of the witness as to his authority. Whether Weller was authorized by his principal to enter into a contract as here under consideration was a question of fact. "The authority of an agent can always be proven by the agent himself": Isaac et al. v.Donegal Conoy Mutual Fire Ins. Co.,
Nor do we regard the objection to Weller's testimony, as not being proper cross-examination, well founded. The Supreme Court, in Conley et al. v. Mervis,
We find no reason to disturb the action of the lower court.
Judgment is affirmed.