Meyer v. Baldwin

| Miss. | Apr 15, 1876

Campbell, J.,

delivered the opinion of the court.

In 1871 plaintiffs in error had acquired a plantation in Bolivar' county, and contracted with one Turpén to manage and control it, as their agent, and to cultivate it for their account, and they agreed to advance everything for the plantation, and to pay the expenses of Turpén and family, who was to repay the advances for himself and family, if sufficient profits were made ; and if there were any profits Turpén was to have half, and if there were none he was to lose only his time. In June, 1871, Turpén took possession of the plantation, and purchased of' defendant in error some things for the plantation and some for himself, and, when the account amounted to $90, gave defendant in error a draft on plaintiffs in error, which was paid. In 1872 Turpén, as agent of plaintiffs in error, made an account with defendant in error, in the name of plaintiffs in error, “similar to the account in this suit,” and drew during the year on plaintiffs-in error at different times, in favor of defendant in error, for some-$500, and all the drafts were paid. At the end of the year 1872 Turpén drew on plaintiffs in error in favor of defendant in error-for the balance of the account of 1872, being some $700, and sent them the account, “which was for family and plantation supplies, and other items similar to the account sued on,”' but in the account of 1872, sent to plaintiffs in error, there was ■no indication of items charged to Turpén for his own family expenses, but all the items were charged to plaintiffs in error, -although the account did contain charges for goods furnished for famity use, with nothing to show that they were not for plantation supplies. The draft for $700, for balance of the : account of 1872, was paid, and no objection to it was ever signified by plaintiffs in error. In 1873 Turpén, as agent of plaintiffs in error, continued to deal with defendant in error, “getting money and supplies and giving him drafts (onplaintiffs in error) for a portion of the accounts, which were paid.” At some time (not stated when) plaintiffs in error had 'written Turpén they preferred he should buy from “Frank & Beinach,” as they would wait for payment until the end of the year, but defendant in error agreed to do the same, and Turpén wrote plaintiffs in error, informing them that defendant in error “would also sell to them on a credit, and that, as his store was in sight of the plantation, to save time and trouble, he (I) pre-fei*red to deal with him. To this they made no objection.” The account of 1873 amounted to $4,007.55, and consists, for the most part, of items for “cash paid Turpén,” or orders .given and signed by him in favor of different persons, sometimes described by name, and sometimes as “ sundry persons,” ..and sometimes as “cotton pickers.” The account is made up partly of various items of merchandise. One item is as follows, viz. : “J. A. Turpén’s account rendered, §437.27 The account is credited with $2,330, being the aggregate of twelve different drafts by J. A. Turpén on plaintiffs in error, varying in amount from $60, the lowest, to $400, the highest in amount, and the first' in time bearing date February 14, 1873, and being for $200, and the two next being in March, 1873, and together amounting to $160, and the others consisting of drafts drawn, one each in the remaining months of the year after March, excepting August, in which there was none, and there being two in July. The account of defendant in error against plaintiffs in error, thus made out, was presented to Turpén, as agent of plaintiffs in error, and was found by him to be correct, and be drew on plaintiffs in error in favor-of defendant in error for tlie balance due, as stated, and sent, tbe account to plaintiffs in error, wlio refused to pay it, and wrote to Turpén that lie bad no authority to make an account. against them with defendant in error.

' Turpén states that plaintiffs in error did not have information that he was making an account against them in 1873 further than that afforded by the several drafts drawn on them by. him as stated. The item charged, “J. A. Turpén’s account rendered, $437.27,” was the individual account made by Turpén, but to be paid by plaintiffs in error as part of their account, and charged separately to Turpén at his request, but with his ■ assurance of its payment by plaintiffs in error as part of their account. Defendant in error had never had any correspondence- or communication of any sort with plaintiffs in error. Turpén told him he was their agent. The money and supplies fur- • nished by defendant in error all went to the use of the plantation of plaintiffs in error, and all of the cotton produced on. the plantation was received by them.

These are the facts of this case as furnished by defendant in error and his .witness Turpén, the agent on the plantation of' plaintiffs in error. An attachment was sued out by defendant in error against plaintiffs in error, and a recovery had by him. of the balance of his account produced as related above.

The question involved,,is the liability of the plaintiffs in error for the account made on their credit by Turpén, their agent, to manage and control their plantation.

It is clear that Turpén, merely by virtue of his position as • manager and controller of the plantation of plaintiffs in error,, did not have authority to contract an account on the credit of' his employers for which they can be held responsible.

It is equally clear that, in the absence of an express authorization by plaintiffs in error to Turpén to incur debts to be discharged by them, the creditor, in order to charge them, must show that they held Turpén out to the public or to him as their.authorized agent to make accounts to charge them, or that they ratified his act in making the account, or that the action of plaintiffs in error was such as to induce the reasonable belief in the mind of defendant in error that Turpén had authority to .make an account in 1873 which they would be responsible for.

From the instructions asked and obtained by plaintiff below it appears that the reliance to obtain a verdict was not on an ■ express authorization to Turpén to contract liabilities to be ■paid by his principals, the plaintiffs in error, but it was on a holding out by defendants below of Turpén as their agent, and ratification by them of his acts, and their so acting as to induce ■plaintiff below reasonably to believe that Turpén had authority to make the account.

Not wishing to intimate an opinion on the evidence, we ¡address ourselves to the consideration of the instructions.

The 1st instruction for plaintiff below is erroneous in not ■ containing the idea that the agency of Turpén must have extended to making the account sued on as a charge against ■defendants. It was not enough that he was their agent. He must have been their ageut to contract the debt sued for. The latter clause of this instruction is also objectionable in that it ■does not inform the jury what a general agent is.

The 2d instruction is erroneous in announcing the effect of ■a ratification by the principal of the unauthorized act of an ¡agent, without informing the jury of what amounts to a ratifi■cation, or furnishing any guide on the subject.

The 3d instruction for plaintiff below is clearly wrong. It tells the jury that the receipt by a principal of the fruits of an unauthorized act of an agent is a ratification. Clearly not, ■without full knowledge b}r the principal. Story on Agency, § 253, note 1.

All of the instructions asked by defendants below (seven in number), except, perhaps, the 2d and 4th, should have been .given. The 6th only was given, and it was modified by erasing the last clause, which was applicable to the state of the evidence, and proper. The objection to the 2d instruction is a want of clearness in expression, and that to the 4th is that it does not include the idea of want of authorization by plaintiffs in error to Turpén to purchase from defendant in ■error on their credit.

The judgment is reversed and venire de nove awarded.