Reynolds v. Davison

34 Md. 662 | Md. | 1871

Stewart, J.,

delivered the opinion of the Court.

Some question is made in the first exception in this appeal, as to which party the responsibility belongs, for the reading by the jury of the memorandum made by the witness Cook. The appellants insist that the memorandum was offered to the jury by the appellee, who on the contrary disavows any design to make it his testimony.

To our apprehension of the questions involved, as presented by the record transmitted, which must govern this Court in reviewing the case, it is not material to inquire into the fret whether the memorandum was offered by the one side or the other, or was inadvertently inspected by the jury.

Assuming that it was offered by the appellee, the memorandum is of such a character as not to prevent him from introducing the testimony objected to in the first and second exceptions of the appellants. We agree with the Court below in its first instruction, as to its effect that “it does not specify any term of renting, and cannot, upon its face, contradict the testimony of Mr. Cook, when he states that the term was for one year.” Neither does it sustain Mr. Cook. It is entirely silent as to any term of renting, and the appellee was not estopped thereby. Being equivocal, the introduction of the testimony of the appellee is not obnoxious to the rule, if otherwise applicable, that Cook’s declarations, in violation of his instructions as.special agent of the appellants were not admissible.

We find no error in the ruling of the Court in the first and second exceptions.

The second prayer of the appellants, in their third exception, presents the question as to the necessity of notice being required from the appellee as tenant, upon the theory, that the renting was but for one year, although Cook, the agent of the appellants, may have rented the house for two years. The assumption of the prayer that Cook was authorized to rent for one year, does not negative his authority to rent for two years, and if he had authority to rent for two years, it would not follow that he could not rent for one year. He might rent for one or two years, and whether the renting would be binding upon the appellants would depend upon his authority; but the prayer submits no question as to the extent of Cook’s authority. It does not say or leave to the jury to find that his authority was to rent for one year only.

The prayer was properly refused.

The third prayer of the appellants could not be granted, as it referred to the second, erroneously assuming that the question as to the agent, Cook, having exceeded his authority, had been presented in the second prayer.

Wo have already stated that we concur with the Court in its first instruction as to the true import of the memorandum, and therefore find no error in the refusal of the appellants’ fourth prayer.

(Decided 23d June, 1871.)

There is no error in the second instruction of the Court.

Upon the assumption that Cook, the agent of the appellants, was only authorized to rent the property for one j^ear, but did in fact rent it for two years; and if, during the second year of the tenancy, Reynolds treated the appellee as his tenant by receiving the rent originally agreed upon between the appellee and Cook, the jury might very well infer the ratification of the contract for the two years lease and to find for the appellee. Evidence had been submitted to the jury, as to Cook’s agency, in renting this property — in his testimony, he referred to the fact of his renting to other persons — he also produced a memorandum book of renting.

The jury might infer, that his employment was that of a general agent for the renting of property. If, being such general agent, he was authorized to rent the property in question, but privately instructed to rent it but for one year, and in violation of the instructions did in fact rent it for two years, the appellee having no knowledge, of the private instruction, very slight evidence of the ratification of his acts, under such circumstances, ought to be sufficient. Strangers or third persons, dealing ivith such an agent, would be liable to be imposed upon by an agent limited by private instructions.

“The responsibility of the principal to third persons applies where the agent is held out to the public, or to the party dealing with him, as having competent authority, although in the particular instance he has exceeded his instructions. In all such cases, where one of two innocent parties is to suffer, he ought to suffer who misled the other into the contract, by holding out the agent as competent to act, and as enjoying his confidence.” Lester & Supplee vs. Allen, 31 Md., 548.

We think the facts referred to in the instruction of the Court, would authorize the jury to infer a recognition of the contract made by Cook with the appellee, and to find for the appellee.

Judgment affirmed.