179 Iowa 586 | Iowa | 1917
I. The defendant is a corporation engaged in selling household goods, such as rugs, curtains and the like, on the installment plan. Its principal place of business is in Erie, Pennsylvania, with about 30 branches located in as many states. One of these was located at Omaha, Nebraska, under which an office or store was established at Des Moines with a superintendent in charge. At the time in question, W. Y. Amsbaugh was such superintendent, and, about the last week in January, 1914, represented himself to plaintiff as manager or sales agent of defendant, and according to the letter, said he wanted to get some horses for C. F. Adams Company and—
“wanted to find out my prices — what I was going to charge him. I told him I gave different prices according to the horse. Well, he picked out a horse. Says I, ‘All right, you can have that horse.’ Well, he said now he ivas going to put a wagon on later, but ‘I am only going to use just one horse to start with, but suppose I can have more horses when I want them.’ I said, ‘Yes, I guess I can fix you out all right.'’ I told him I would furnish him
“I furnished horses from the first of January up to the last part of November, 1914. I put down every day in. a little daybook that I had in my pocket, and every month I made up a statement and then put it on the bigger book. That little daybook is destroyed. I guess, after I put it in the big book, I didn’t pay much attention to the little book; from day to day, every day I put it down who used the horse and what for; then I put it in the bigger book, or had somebody put it in, because I am a poor writer. So I took it out of the little book and put it in the larger book. It was not itemized in llie big book — just put in monthly, by the month, so much a month, totaled up and the total of the month put in. I think the little book is destroyed. T guess I have the big book. This big book, Exhibit A, is a book that I transferred my business to from the little book. The first transfer of dealings with Adams Company is for January and February, and appears at page 27. The charge is not in my handwriting, but it was written down in my presence and at my dictation; the credit shown is in my handwriting. The- credits and debits on that page are correct, to my personal knowledge.”
“to state whether or not there Avas a certain custom as to the authority of agents such as Amsbaugli in the case at bar in Des Moines. A. I know from our own experience and lots of others as I say that I had worked for at different times what their custom Avas. Court: Was it always the same? A. Yes, it was always the same. Q. I ask you'to state whether or not there was a custom in the state of IoAva, Des Moines, among installment houses, as to the am thority of their agents such as the agent Amsbaugli at Des Moines. (Objected to unless the question includes Avhetker or not the witness knows the custom governing the O. F,Adams Company with the rest.) A. I don’t know what the, custom Avas with the Adams Company. Q. That Avas not the-question. A. It was the custom always with our house. Court: Just ‘Yes’ or ‘No.’ A. I can only speak from our own experience. Court: Every witness has to do that. A. That covers the point I can speak from our own experience.It was the custom of all the houses to — • Court: ‘Yes’, or ‘No.’ A. I believe I can answer that question ‘Yes.’ Q.
Cojme had been manager of an installment house, and testified as to its custom in furnishing horses to salesmen and others so far as he knew, but had no knowledge of the authority of managers other than of the company by which he had been employed. The evidence fell far short of warranting the inference that a custom such as claimed prevailed in the business of selling goods on payments in installments, and therefore did not justify any inference as to how defendant was conducting its business.
Other evidence disclosed that, shortly after Amsbaugh left, a man claiming to represent defendant called on plaintiff for wringers, and, upon request for payment of the account, told' plaintiff that Amsbaugh ought to pay his own debts.
One West, manager of the Omaha branch, was in the city at about this time, and met plaintiff. After Amsbaugh left, West arranged with Ellison, thp collector, to take-charge of the office, and authorized him to hire a horse for Cook, and the latter was to have 3 per cent on sales if these exceeded $100 per week. The plaintiff testified that, prior
' “There was one fellow came from Omaha, manager, by the name of Williams — he brought a fellow named Runnels. They said they wanted to rent a horse for the C. F. Adams Company in Omaha, — they were going to leave Runnels to do the managing in Des Moines, — and Williams made an agreement with me how much I was going to charge for my horses. I made arrangements with them to furnish the livery, and I sent my bill in to Runnels every month and got my money. This was before this claim. Then they had a Jewish fellow, — I forgot his name; after Runnels left, they sent a Jew. He came and engaged a rig the same as Runnels; they used one or two or three horses a day. That Jew kept on using the rig and finally run up a bill on me, and when he left he owed me about fifty some dollars. A fellow came from Omaha and settled this bill; he claimed he represented the C. F. Adams Company. He paid me the bill. Of course, he did not exactly pay all of it. It was fifty some dollars, and he settled for $50.”
The mere circumstance that Amsbaugh was in charge of the office, checked the goods out to salesmen, and credited any returned, did not justify plaintiff in relying on authority to hire horses for use of himself or salesmen under him, and his declaration that he was getting them for defendant was hearsay. Such payments as were made did not purport to come from defendant, and the only other evidence is that, in one instance, the manager paid a portion of a bill which a former superintendent had forgotten to pay before leaving. We are of opinion that this was not sufficient, especially in view of the compromise, in connection with the other evidence adduced, to warrant a finding of even ostensible authority in Amsbaugh to incur the indebtedness against defendant.
III. Appellant’s brief is criticized. It is not as well