171 S.E. 537 | W. Va. | 1933
Plaintiff, Nellie Wolford, complains of the action of the trial court in setting aside a verdict of $2500.00 in her favor against defendant, Goldey Brothers, Inc.
Defendant is a foreign corporation, engaged in the sale of tonsorial supplies, with its principal place of business and general office in Cincinnati, Ohio. It operates a branch store in Charleston, West Virginia, formerly under the management and control of L. H. Schade, with power to sell on credit and collect accounts. In November, 1931, plaintiff, who was at the time conducting a beauty parlor in Charleston, negotiated with Schade as agent of defendant for the purchase of two Shelton hair driers. Schade agreed to accept from *260 plaintiff on the purchase price thereof some used hair driers of a different type. At the time of the transaction, plaintiff delivered to Schade her postdated check for $20.00, payable to defendant, as a further credit on the purchase price of the Shelton driers. Because of refusal by plaintiff to accept the articles, as defendant contends, or for the reason, as plaintiff claims, the defendant insisted on delivering to her a different type of hair driers, she stopped payment on the check and nothing further came of the transaction until May, 1932, when Schade delivered the check, for collection, to one H. Blustein, who was operating a collecting agency in Charleston. On the same day, Blustein swore out a warrant before a justice of the peace for the arrest of the plaintiff on the charge of having violated section 39, article 3, chapter 61, Code 1931, known as the bad check statute, and as special constable, immediately arrested her upon the warrant. She was taken by him, at her request, directly to defendant's store, where (according to the testimony of herself and Mrs. Frances Price, accompanying her) Schade replied, in answer to her question to him, "Do you know what you are doing?", "Yes,we have you under arrest, and you are going to pay that check." She was then taken by Blustein before the justice issuing the warrant and there gave bond to appear at a later day for trial. On the day fixed, she appeared, and, upon trial before the justice, was discharged.
Defendant, at the trial of this action, apparently did not seek to deny responsibility for the acts of Schade, but contended merely, as shown by the evidence and instructions, that he had not instructed Blustein to swear out the warrant or to prosecute plaintiff. It now shifts its position by claiming that Schade did not possess authority to bind it by instigating the malicious prosecution. In this connection, numerous authorities are cited to the effect that an agent with authority merely to collect has no implied authority to do so by the institution of criminal proceedings. It is also insisted that the same rule should apply to the manager of a business with authority to collect accounts for his principal.Lamm v. Charles Stores Company, Inc.,
Neither of those cases, in our opinion, meets the facts of this case, in which the agent, Schade, was in charge of the domestic business of a foreign corporation whose main office and chief place of business were in another state. In these circumstances, he will be treated as a general agent.
In Fetty v. Huntington Loan Co.,
We, therefore, reverse the judgment of the circuit court, reinstate the verdict and enter judgment thereon.
Reversed and entered. *263