21 N.M. 531 | N.M. | 1916
Lead Opinion
OPINION OP THE COURT.
(after stating the facts as above.) — This court has not had the advantage of a brief by the defendant in error, and will therefore consider the alleged errors presented by the plaintiff in error in the order in which they are referred to in the brief.
“The secret or private instructions to an agent, however binding they may be as between the principal and his agent, can have, no effect on a third par.ty who deals with the agent in ignorance of the instructions, and in reliance on the apparent authority with which the principal has clothed him.”
It is seriously urged by plaintiff in error that there is no evidence at all as to any inquiry by the plaintiff as to Farrand’s agency and authority, or that defendant, .held out to the plaintiffs that Farrand was its agent; that the only evidence upon the subject is that Farrand appeared before the plaintiff, representing himself to be an agent, showing, a card so designating' him, and having in his possession certain blank forms, of contract made out in the name of the defendant company. We have made a careful examination of the record in this respect, and find that the witness Farrand testified that he was employed by the defendant company as .general sales agent in charge of the safe of their products;;that he made a trip .through Kansas in 1912 in the interest of the defendant company, and there became acquainted with Mr. Baker, who was one of the partners in the plaintiff copartnership, and entered into a contract with such plaintiff which he identified as the one executed by himself and Mr. Baker. In further support of the alleged agency, the plaintiff offered in evidence a letter from the Yankee Fuel Company, addressed to the alleged agent, Farrand, offering him employment, which letter was signed by one Horace W. Kruse as general manager of the Yankee Fuel Company, and further offered a letter from the witness Farrand addressed to the same company, accepting the offer of employment. This witness, Mr. Farrand, also testified that at the time of the exchange of correspondence, Mr- Kruse was acting as general manager of the New Mexico-Colorado Coal & Mining Company, the defendant below. Mr. Kruse on the witness stand testified that the New Mexico-. Colorado Coal & Mining Company became the selling agent for the Yankee Fuel Company on January 1, 1912, which was before the contract was executed, and that he was general manager of both companies. The offer of employment addressed to Mr. Farrand, and the acceptance, as disclosed by the correspondence referred to, were exchanged before the 1st day of January, and after the arrangement between the two companies. It would appear from the testimony of Farrand that he was paid his salary by the check of the defendant company»-, and his connection with that company is further referred to by his own testimony, to the effect that he had a certain conversation with the general manager, Mr. Kruse, who spoke to him about selling coal for the defendant company' the New Mexico-Colorado Coal & Mining Company, and that arrangements were made that he should represent himself as an agent of the defendant company. He identified a form of contract in the name of the defendant company, which was given him at the time, and one of which was the form of contract entered into with the plaintiff co-partnership, which is the subject of the present litigation. Mr. Kruse as a witness testified that Mr. Farrand prepared the form of contract in question. Another -witness, Mr. Lawrence, an officer of the defendant company, testified that he knew that Farrand was going out to sell coal for the defendant company, and that the only question between this company and Mr. Farrand was whether he should sign the contracts at the time he made a sale, or whether he should bring them back to the office for execution by other officers of the company, this witness pointing out by his testimony that it was a requirement of the defendant company that all contracts must be approved by the executive officers of the company at New York. This witness expressly admitted that the alleged agent, Farrand, was sent out by the defendant company to sell coal and take orders for that company- Mr. Lawrence admitted, however, that the rule of the company as to the execution of contracts by the executive officers had not been communicated to the customers of the company, and therefore its limitation of the authority of the agent would have no bearing upon the case, and would in no wise affect the apparent authority of the agent, which clearly appears from the evidence as a whole. As stated in 31 Cyc. 1331:
“While as between the principal and the agent the scope ■of the latter’s authority is that authority which is actually conferred upon him by. his principal, which may be limited by secret instructions and restrictions, such instructions and restrictions do not affect third persons ignorant thereof, and as between the principal and third persons the mutual rights and liabilities are governed by the apparent scope of the agent’s authority, which is that authority which the principal has held the agent out as possessing, or which he has permitted the agent to represent that he possessed, and which the principal is estopped to deny.”
See, also, Western H. & L. Co. v. Bank, 9 N. M. 1, 47 Pac. 721.
There is another point presented in the consideration of this particular assignment of error, viz., that the shipment by the defendant to the plaintiffs of a car of coal in March, 1912, was in no way an approval and ratification of the alleged contract, for the reason that there is no evidence that at that time the defendant had any knowledge whatever of the alleged contract. .We cannot agree with this contention of the plaintiff in error her cause it would appear from the record that the witness Farrand testified that he brought back the contract after it had been executed by him and signed by one of the co-partners, and submitted it to the general manager of the defendant company. We therefore believe that it cannot be said that there is no evidence upon this point. The weight of this evidence was for the' jury under .the circumstances. We deem it unnecessary to further com sider this particular assignment of error, and for the reasons stated do not consider that the same was well taken-
The second contention under this assignment of error is that, under the terms of the alleged contract, delivery was at the option of the buyer, for which reason it .was the duty of the plaintiff to make demand for delivery of the coal before the defendant could be said to be in default, and that the evidence discloses that the' only coal ordered by plaintiffs under the contract was shipped in accordance with instructions, by reason of which fact the defendant was never in default. In other words, it is contended that where delivery is to be made at the buyer’s option, the seller has no right to deliver, and the buyer is not compelled to receive goods until his option is exercised, it being the duty of the buyer to notify the seller to make delivery, and that the buyer may demand delivery from time to time .as he requires or needs' the goods, or may order the whole to be delivered at any time during the period fixed, but he must at least order deliveries so that they may be complete at the expiration of the period. Considerable authority is cited in support of these general principles, which we do not deem.it necessary to consider further than to state that they have no application to the facts of this case. It appears from thé record thát the defendants in writing advised the plaintiff that they would not be bound by the pretended contract which they understood had been made by Far-rand as general agent of the defendant company. We Consider that the position of the defendant company in this respect amounted to a breach of the contract. The body of the letter referred to reads as follows:
•' "We understand that you hold a ‘contract’ with, this company made and entered into hy George H. Farrand as general sales agent representing this company. We wish to advise you that we do not know of any such contract, and that we do not recognize any contracts that were made by this man, who is not in our employ. We_are very sorry, if this will discommode you in any way, but we could not fill your orders under the conditions and prices we understand this contract covers.”
This was a definite refusal to fill further orders under the conditions and prices governed by the contract, and clearly obviated the necessity that plaintiff should make a new or further demand for delivery, and we believe tfiat the principle announced -by Mr. Bishop in his work on Contract (2d ed.) 610, is controlling under the circumstances of the case. Mr. Bishop says:
“One exercising the power to rescind his contract without right — that is, declaring to the other party his intention not to abide by it — commits thereby a breach whereon the other may bring an immediate suit, without demanding a performance which, by the terms of the contract, was to be in the future.”- •• 1 v
Under .the circumstances, therefore, we conclude that a demand was not necessary for delivery of the coal after the defendant had elected to rescind the contract by refusing to be bound by the terms and conditions thereof.
A further ground of error is predicated upon the admission in evidence of plaintiff’s Exhibits D and E, to which the same general objections of immateriality and irrelevancy were made, and which were a bill of the defendant company to the plaintiff company, for the car of coal delivered after the contract was entered into and the bill of lading in connection with the car of coal consigned to plaintiff by defendant in March, 1912. This particular ground of objection is disposed of by the fáct that it is raised in this court for the first time, and was-not included in the motion for new trial. It was held in an early case by the territorial Supreme Court, and ever since has been the rule of that court, as well as the present court, that:
“Where a party, on a motion ior new trial, complains of an alleged erroneous decision of the trial court, in the admission or exclusion of evidence, he must point out in his motion specifically and with reasonable certainty the particular evidence admitted or excluded; otherwise the court below need not, and the Supreme Court will not, review such alleged erroneous decision.” Territory v. Anderson, 4 N. M. (Gild.) 213, 13 Pac. 21.
See, also, Wade’s New Mexico Appellate Procedure, §' 114, where later authorities are collected and referred to-.
Plaintiff in error further argues in support of its contention that inadmissible evidence to the prejudice of the defendant was admitted over its objection, citing a number of alleged examples predicated upon questions and answers addressed to the witness George H. Farrand and the witness Baker. These objections, however, are all disposed of by what we have said as to the failure of defendant to incorporate the several objections in his motion for new trial. The motion for new trial is entirely silent upon these several grounds of objection, and the objections, therefore, are not available here for the reasons stated.
“Whenever the evidence adduced presents an issue of fact which, if determined in plaintiff’s favor would entitle him to recover, the case should he submitted to the determination of jury.” 38 Cyc. 1532.
This point was touched upon in a recent opinion by this court, in the ease of Crawford v. Western Clay, etc., Co., reported in 20 N. M. 555, 151 Pac. 238, and while the foregoing principle táken' from Cyc. was not there expressly followed, we there said that:
■ “When the evidence is of such a character that the proper inference to be drawn from it * * * is a question with respect to which different opinions may not unreasonably be formed, it must be submitted to the jury under proper instructions.”
We therefore overrule this assignment of error.
., “It. is true that a record on appeal must show that it contains. a transcript of all that portion of the record of the trial court necessary for a' consideration of the questions presented'for review, and the duty of having such a transcript- properly prepared_ and filed rests upon the appellant ór plaintiff in' error.”
-;'“It -is well settled in this jurisdiction that a party who intends to assign error upon an instruction given by the [trial] court of ; its own motion, or upon request of the adverse party, must either tender to the court an instruction which correctly states the law, and except to the refusal to give such instruction, or he must, by his exception, * * * call the attention of the trial specifically to the error in the instruction proposed to be given, in order that the instruction may be corrected and the error avoided.”
See, also, Childers v. Southern Pacific Co., 20 N. M. 366, 149 Pac. 307; Crawford v. Western Clay, etc., Co., 20 N. M. 655, 151 Pac. 238. As pointed out in Wade’s New Mexico Appellate .Procedure, at section 116:
' “Where it is contended that the court erred in giving or refusing to give ’an instruction, the motion for new trial should clearly point out the instruction and the ground of error.”
’ ■ This-was not done in the motion for new trial in this casej the ground of objection there urged to the' giving of the-several instructions’being: ' 1 -
'“The pourt erred in its instructions to .the'jury, in giving its-instruction No.' 1 to said jtiry.” ' :
For which reason the motion for new- trial did not, in any manner, direct the court’s attention to any vice in the instruction, or wherein error exists prejudicial to the appellant.
It is next argued that manifest prejudice to the defendant resulted from a failure of the trial court to instruct the jury previous to argument of counsel in this cause, for the reason that counsel had no opportunity to comment upon and explain the instructions, and the law applicable to the issues involved in relation to said instructions, and for the further reason that the statutes of the state of New Mexico require that instructions be given to the jury before the argument of counsel, which statutes are mandatory. There might be a serious reason for a favorable consideration of this objection if it appeared from the record that the instructions were given under the circumstances pointed out, but we have searched the record in vain for any evidence" in support of the argument of counsel in this respect, and it is1 needless to say that we must be governed by the record in all respects,- and cannot accept the argument of counsel as con-elusive. The record being silent as to when the instructions were given, and the alleged failure of the court to give the instruction as required by the statute not having been called to the attention of the trial court at the time, we are under the necessity of holding that this ground of objection is not well taken. For the several reasons stated, the assignment of error in question upon the subject of instructions given and refused must necessarily be overruled.
Our. conclusion in the matter makes it necessary to compel a remittitur of the excess in the amount of this judgment over and above the amount which it' is clear there is evidence to support, and we therefore order that if the defendant in error, within 30 days from the filing of this opinion, shall file with the clerk of this court its agreement to remit the sum of $4,500 from the judgment of $13,500 obtained by it in the court below, the remainder of the judgment will be allowed to stand; but, upon its failure, so to do, the judgment will be reversed, and the cause remanded for new trial.
Rehearing
ON REHEARING.
On motion for rehearing appellant has assigned five distinct grounds of alleged error in the opinion filed in this case. Only three of these questions shall be discussed here for the reason that the other two were disposed of in our former opinion and need no discussion again.
Appellant asserts that the question as to whether or not appellee breached its contract by refusing to pay for one installment of coal is properly before the court, for the reason that it was properly presented to the trial court. A reinvestigation of the record discloses that no .such' question was • raised in the trial court.
We held in our opinion in this case that no demand for deliveries of coal, on appellee’s part, was necessary because of, the unequivocal and unqualified repudiation- of the contract by appellant, citing as authority therefor the rule that where one party exercises the power of rescission without right, he commits thereby a breach of the contract, whereupon the other party may bring an immediate suit without demanding performance, although the time for performance may be in the future. Appel-' lant concedes that the doctrine is correct, but contends that its qualification should be applied, viz.: that where the innocent party treats the repudiation as inoperative and awaits the time for full performance, he thereby;' in effect, waives the breach by way of repudiation, and keeps the contract open and subsisting for all purposes. He thereupon concludes that the breach by appellant company was waived, and that appellee breached the contract by failure- to demand deliveries of coal. Our opinion in this case on this question was written on the theory that the repudiation was accepted by appellee except for purposes of suit on the contract for damages, and we are satisfied that the facts of this case justify that conclusion.
Nothing else need be said in this regard except, perhaps. that under such circuustances the bringing' of immediate suit by the innocent party is simply a fact evincing an acceptance of the repudiation; hence the bringing of an immediate suit is not a condition precedent to recovery. We regard the rule to be that only a release by appellee of appellant’s liability on the contract, or the invocation of the statute of limitations, could defeat the appellee’s cause of action, neither of which is involved in this cause.
The motion for rehearing is therefore denied; and it is so ordered.
(Reporter’s Note- Remittitur was filed and judgment was affirmed.)