153 Ky. 293 | Ky. Ct. App. | 1913
Opinion of the Court by
Affirming.
It is insisted for the Brick Company that the proof for Mullins is not sufficient to show that there was any change made in the contract. While Mullins’ testimony is not very clear, as he cannot read or write, he states that a change was made in the contract and that it was agreed between Steele, the superintendent, and himself, that the superintendent would keep his and Steele’s pay separate and pay him $5 a thousand and Steele $3; and that he hauled the lumber under this agreement. J. B. Vincent, a witness for Mullins states that the superintendent told him that' they had divided the contract and that Mullins got $5 a thousand for hauling the logs. A.
The court instructed the jury in substance that if they believed from the evidence that the plaintiff, Mullins, and the defendant entered into a contract for the hauling of the timber, and that under the contract between the plaintiff, Mullins, and the defendant, if any, there was a balance coming to the plaintiff, they should find for him. The defendant asked the court to instruct the jury that unless they believed from the evidence that Mullins made a contract with the defendant, and that he performed work for it at the agreed price amounting to the sum named in the petition, they should find for the defendant. There was no dispute between the parties as to the amount of hauling done and no dispute as ,to the amount due for the hauling. The only question in .the case was whether the hauling was done under a contract made between Mullins and the company or under the contract made by Steele and the company; and we do not see that the instruction which the defendant asked could have had any affect on the result of the trial, if it had been given; for the instruction which the court gave presented precisely the same idea.
It is also insisted that there is no proof that Hitchins, the superintendent of the defendant, who, according to :the proof of Mullins, made the contract with him, had .authority as the agent of the defendant to make a contract for it. But this question appears not to have been ■ presented in the circuit court in any manner on the trial. -Hitchins was the superintendent of the plant. He received and paid for the timber; he kept the account; he gave the checks. There was no evidence that he was not authorized to make an agreement changing the contract with Mullins and Steele, and under the facts shown, his authority must be presumed. (New South Brewing Co. v. Shuck, 20 R. 2005). Such a contract is within the apparent scope of the authority of an agent exercising the powers possessed by Hitchins.
Judgment affirmed.