98 Mo. App. 324 | Mo. Ct. App. | 1903
The action is on an account for-goods alleged to- have been sold and delivered to the' defendant in the months of October, November and December, 1900. The defendant denied the purchase and delivery of the goods. The finding and judgment were-for the defendant, from which plaintiff appealed.
The defendant owned a mining lease on twenty-three acres of land; and one F. C. G-rable assisted in' organizing the defendant company and superintended, the construction of its ore-dressing mill on the leased premises which was completed near the close- of the-year 1899. It was admitted that the defendant occupied.
Plaintiff’s testimony tended to show that during the time last mentioned said Grable was acting as agent of defendant, and as such bought goods of plaintiff at various times which were paid for by defendant. On the other hand, there was evidence tending to show that one C. E. Hart was defendant’s superintendent and that he bought such goods from the plaintiff and that said G-rable had nothing to do with their purchase. There was evidence tending to show that on said 15th day of September, 1900, defendant ceased to do business, and soon thereafter let the property to the firm of Lindsey & Townsend who occupied the premises and carried on the mining until December 1st, when defendant leased the same to what was known as the Andrew Jackson Zinc Company. Grable was the manager and agent for those two concerns,' and it was during the time they had charge that the goods in controversy were bought by him.
Plaintiff tried its case upon the theory that as the evidence tended to show that the said Grable was the agent of the defendant, and as such purchased goods from the plaintiff for defendant up to September 15, 1900, when defendant claimed to have let the property and business to Lindsey & Townsend, and afterwards to the Andrew Jackson Zinc Company, and that during the time of the occupation of the property and the carrying on of the business by the last-named parties the plaintiff sold the goods in controversy on the order of said Grable in good faith, believing that he was still the agent for defendant, and without notice from defendant of such change in the business, defendant was liable fon the value of the goods. The plaintiff asked several instructions predicated upon its said theory of the case, some of which were given, some refused, and others modified by the court. Complaint is here made to the
But plaintiff saved its exceptions to the action of the court in giving instruction numbered one, two and three in behalf of defendant. There can be nO' justifiable criticism of instruction number two-, for it practically amounts to nothing more than telling the jury that if said Grable was at no time defendant’s agent, and that he had assumed to act as such without its knowledge, the defendant was not liable for the value of the goods — which is good law. The defendant’s third instruction is practically the same as number two, except as to' an-immaterial variation in form.
But plaintiff most earnestly contends that defendant’s instruction number one did not embody the law of the case. Said instruction tells the jury that .plaintiff must show one of three conditions of fact before it can recover, viz.:
First. That said Grable during the time of the sale of the goods was in fact defendant’s agent, and as such he bought them; or,
Second. That defendant’s 'officers knew that he was buying goods in its name; claiming to be its agent without protest on defendant’s part, and that plaintiff sold the goods believing him to be defendant’s agent; or,
Third. That defendant’s course of business at its mill and property from and after September 15, 1900, was calculated to lead plaintiff to* believe that Grable had authority to' act for defendant in buying the goods in dispute, and that plaintiff sold the goods in dispute believing that said Grable was defendant’s agent with authority to make the purchase.
The plaintiff contends that agency may be shown in more ways than are included in said instruction, and for
But plaintiff claims also that it is in conflict by reason of its abbreviation with plaintiff’s instruction number two, which is to the following effect, viz.:11 That if prior to the sale of the goods in dispute said Grable had been the agent of the defendant in buying like goods from the plaintiff, and that plaintiff in selling to said Grable, as agent of defendant, said goods first named without notice from defendant of the revocation of his authority as such agent, and believing him to be such agent, the plaintiff would be entitled to recover.” It must be admitted that said theory of the case of continuing an agency once shown, so far as third persons are concerned who deal with the agent as such after and without notification of revocation of his authority, is wholly eliminated from said third instruction of defendant; and for that reason should not have been given, for it did not contain, as it purported to, all the theories of the plaintiff’s right to recover on the evidence. It is well-settled law that the revocation of the authority of an agency takes effect as to third persons only from the time when the revocation is made known to them. Story on Agency (9 Ed.), sec. 470; Ewell’s Evans on Agency, p. 570, and authorities cited; Wharton’s Agency and Agents, sec. 110. As the alleged agency of Grable for the purchase of goods would be revoked necessarily when defendant ceased business and leased the same to another party, it was a legitimate inquiry whether plaintiff had notice of such revocation?
Plaintiff further insists that the court committed error in refusing to allow it to prove what Grable said as to his agency for defendant while he was buying the goods. One’s agency can not be shown by his own declarations or admissions. Mitchum v. Dunlap, 98 Mo.
The objections made to' the admission of evidence on the part of defendant, we think, were without merit.
As the case will be reversed for the error noted, it is not necessary to pass upon that part of plaintiff’s motion asking for a new trial on account of newly-discovered testimony.
Reversed and remanded.