White Sewing MacH. Co. v. Sneed, 174 S.W. 950

White Sewing MacH. Co. v. Sneed

174 S.W. 950

Tex. App.

1915

Check Treatment

WILSON, C. J.

(after stating the facts as above). [1] The authority possessed by J. H. Sneed as the agent of appellant was conferred upon him by a letter written to him by appellant. From this letter it appeared that said J. H. Sneed was employed by appellant—

“as a traveler [quoting] on the road for the solicitation of orders and the transaction of such other business in the way of adjusting dis *952 putes, making settlements, etc., as may properly enter into our business.”

In the letter was a statement as follows:

“It is understood you are to operate under our direction and be ready at all times to render such assistance as you can in the way of making collections, adjusting differences, etc.”

As explanatory oí the nature of J. H. Sneed’s agency, the court permitted appellant to prove by its general manager, Chase, that said J. H. Sneed’s duties were to solicit orders from merchants and dealers in sewing machines, and to send to appellant at Cleveland, Ohio, for approval or rejection, orders for machines taken by him and bonds by the purchasers to secure the payment of the purchase price of machines ordered. But the court refused to permit appellant to prove by said Chase that J. H. Sneed had no authority to make a contract for it, and no authority to accept for it as a satisfaction of R. L. Sneed’s indebtedness to it the sewing machines said R. L. Sneed claimed he turned over to said J. H. Sneed for that purpose. The refusal of the court to make the proof specified is the basis of the first and second assignments.

As we view the ease, the court did not err when he excluded the testimony referred to. It was not pretended that J. H. Sneed possessed any authority as appellant’s agent other than that conferred upon him by the letter. Therefore it was the duty of the court, and not of witnesses, to construe that letter and determine the extent of the power it conferred upon the agent. 1 Clark & Sky-les on the Law of Agency, § 214 et seq., where it is said that:

“If the authority [of an agent] has been conferred by writing, * * * the fact and scope of the agency are questions of law, and are properly decided by the judge.”

[2, 3] Over appellant’s objection thereto on the ground that the declarations of an agent are inadmissible to prove his authority as such, the court permitted appellees to prove by R. L. Sneed that J. H. Sneed told him he (J. H. Sneed) had authority as appellant’s agent “to adjust such settlements as that,” meaning the one whereby said R. L. Sneed claimed he had paid the notes sued upon by delivering sewing machines to J. H. Sneed for appellant, and further told him that, “when he saw a firm in failing condition, he would take charge of the matters and settle all the affairs'.” It is believed the objection should have been sustained and the testimony excluded. The rule is that the admissions and declarations of an agent “are not admissible for the purpose either of proving the fact of agency, or of establishing the nature and extent of his authority.” 1 Clark & Skyles on the Law of Agency, § 465. In their brief appellees say that the assignment attacking as erroneous the action of the court in admitting the testimony specified should be overruled, because, as they aver is true, the court—

“specifically charged the jury that they were not to consider any statement or representation of J. H. Sneed, either written or spoken, as evidence showing that J. H. Sneed was the duly authorized agent of the White Sewing Machine Company, either to accept machines or to apply same upon the indebtedness to the White Sewing Machine Company.”

The contention is not supported by the record sent to this court. There is in the transcript what purports to be a charge requested by appellant to the effect specified, but it does not appear to have been given by the court to the jury, and it is believed we should not assume that it was given to them.

[4, 5] As the cause will be remanded for a new trial in the court below, we think it proper to suggest that, if the testimony is the same on that trial as it was on the one resulting in the judgment now reversed, the jury should be instructed to find in favor of appellant, as prayed for in its petition. 11 is believed the court should construe the letter referred to as failing to confer upon J. I-I. Sneed authority, as appellant’s agent, to bind it by his act in accepting, if he did, of R. L. Sneed, the sewing machines in satisfaction of the debt evidenced by the notes sued upon; and it is not believed that the fact that R. L. Sneed, after purchasing sewing machines of appellant, treated same, and permitted his partners to treat same, as a part of the stock in trade of the Sneed Trading Company, is a reason why the sureties on the bond sued on should be relieved of liability to appellant. If it appeared that appellant was seeking to hold the sureties on R. L. Sneed’s bond liable for sewing machines it had sold to the firm of which he was a member, a different question would be presented. But what appellant sought to do was to hold the sureties liable for the debt incurred to it by R. L. Sneed for sewing machines purchased of it by him. It is not believed that appellant’s right to look tó the bond as security could be affected by the disposition made of the machines by said R. L. Sneed after he purchased same.

[6] The contention made by appellees in their brief that appellant was not entitled to maintain its suit on the bond, because it was a foreign corporation and had not secured a permit to transact business in this state as required by law (articles 1314 to 1318, Vernon’s Statutes) is not believed to be tenable. The sewing machines were sold to R. L. Sneed in Ohio, and not in Texas; therefore the statute invoked was not applicable to those transactions. Having a right to sell the machines as it did, without securing a permit to transact business in this state, as an incident thereto, we think appellant had a right, without such a permit, to take the bond as security for the payment of the purchase price of the machines. Security Co. v. Panhandle National Bank, 93 Tex. 575, 57 S. W. 22; Jackson Woolen Mills v. Moore, 154 S. W. 642.

The judgment is reversed, and the cause is remanded for a new trial.

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