20 Ind. App. 156 | Ind. Ct. App. | 1898
This was an action in which the appellant, a manufacturing corporation, sued the appellees upon a contract in writing called in the complaint a “promissory note,” but which was in the form of a bill of exchange accepted by the appellees.
The court overruled a demurrer of the appellant addressed to a number of paragraphs of answer separately. It is claimed in argument for the appellant that the sixth paragraph of answer was not sufficient to withstand a demurrer. It is admitted that this paragraph was technically sufficient as an answer of failure of consideration, but it is contended that it was not sufficient as an answer of set-off, or as a pleading showing ground for affirmative relief. However faulty the form of the pleading, especially as to its prayer, it is clearly shown by the record that there was no recovery against the appellant upon any pleading seeking affirmative relief for the appellees, and that the paragraph in question was treated on the trial as a pleading setting up merely matter of defense. This is not only indicated in the instructions given to the jury, but the verdict was general, “for the defendants,” and the judgment was “that the plaintiff take nothing by this cause of action, and that the defendants recover of and from said plaintiffs their
The appellant’s motion for a new trial was overruled, and it is contended that there was error in the admission of certain evidence, over the appellant’s objection. The so-called note was given with other like notes for the purchase money of a certain traction engine sold by the appellant to two of the appellees, the other appellees being sureties. To secure the payment of these notes, the buyers executed to the appellant a mortgage upon the purchased property and also a certain well-drilling machine with all- tools belonging to and used in and about the same. The mortgage contained a provision that if default should be made in the payment of any of said notes, or any part thereof, or any interest thereon, the mortgagors should forfeit title to the mortgaged property and right to the possession thereof, and it should be lawful for the mortgagee, or the agent, attorney, legal representative, successors or assignees of the mortgagee to take immediate possession of the property without legal process, and, after giving such notice as is required by law from a sheriff in making sale of chattels, to sell the same at public auction, or so much thereof as should be sufficient to pay the amount due, or to become due, etc., the money remaining after paying said sums, if any, to be paid on demand to the mortgagors.
The traction engine was sold by the appellant to the mortgagors, únder an order signed by the buyers and accepted by the seller, subject to a warranty contained in the order, that the engine was to be well built of
The buyers did not make the first payment so provided for, and the engine was not repaired. Some
On the trial the appellees sought to establish that the property was so taken from the buyers under and pursuant to an agreement between them and the appellant, through said agent Wilkinson, for the release of the appellees and the surrender of the said notes in consideration of the surrender of said property by them; while on the part of the appellant it was sought to establish that the property was so taken and sold pursuant to the provisions of the mortgage, and not otherwise. In the course of the introduction on behalf of the appellees of the testimony of the appellee William Gray, one of the buyers, from whose custody the property was so taken by Wilkinson, the witness was permitted over the appellant’s objection to testify that Mr. Wilkinson told the witness, “if we would let them have the engine and well machine without putting them to any further cost, that they would deliver the notes and cancel the debt.”
. The ground of objection urged was that it was not shown that Wilkinson had any authority to make such statement. The witness further testified that, in answer to this statement of Wilkinson, the witness told him “All right, to take it,” and that Wilkinson then took the machinery. It appeared in evidence that Wilkinson was the agent of appellant in the lo
There was no evidence that the alleged settlement to which the witness testified had'been ratified by the appellant with knowledge of the facts. It was not shown how the appellant had held out the agent in any other transactions. For the determination of the question whether or not it was shown that the agent had authority to make such a settlement or the buyers had a right to rely upon his possession of such authority by reason of the character in which he was held out by the appellant as its agent, we find no evidence in the record, except of matters connected with the particular transaction in which the note in suit was given.
We are inclined to think that the restrictions expressed in the “notice” contained in the order under which the engine in question was furnished so far related to the particular transaction of which the order formed a part, that it would not apply to transactions subsequent to a completed sale and delivery of the purchased property and the acceptance of notes and securities therefor, so as to negative conclusively the authority of the agent to make a settlement by accepting the surrender of the property upon an agreement to cancel the debt, if the evidence could be said to show that the appellant held out the agent as possessing authority to compromise on such terms. It was shown by the evidence that the buyers first nego- '
We have carefully searched the record, and while we find no indication as to how the appellant held out this agent to the public, we have stated in substance all that is shown as to the character of his connection with this transaction. The authority of an agent must proceed from his principal. In ascertaining the extent of his authority we must look to what has been expressly or impliedly authorized before the act of the agent in question, or to the conduct of the . principal after the act in relation thereto, by way of adopting or rejecting it. If, as here, the subsequent conduct may be explained and understood in a sense
If the agent only had authority to sell, or to negotiate sales, and to collect the price, certainly he had no authority to cancel the debt upon the surrender to him of the property constituting a security for the debt, without some access of authority.
It is true that the liability of the principal for the conduct of the agent is not to be determined alone by the authority actually given to the agent, but the principal will be bound as if he had conferred the authority which the third person dealing with the agent was justified in believing to have been given to the agent; but the third person is thus justified not by the words or acts alone of the agent, but by the words or conduct of the principal. There must be an appearance of authority caused by the principal, and the agent must have acted within its scope. We cannot conclude that the settlement to which the witness Gray testified was shown to be within the scope of authority shown to