92 Wash. 456 | Wash. | 1916
Lead Opinion
The plaintiff, as assignee for collection of the Self Winding Clock Company, brought two actions in the superior court for Stevens county, one against School District No. 2, and the other against Union High School District No. 3. The purpose of these actions was to recover the purchase price of certain clocks, and the necessary equipment, which had been furnished to the districts by the Self Winding Clock Company. After the issues were framed, the two actions were consolidated and tried in the superior court as one action. The jury’s verdict was in favor of the school districts. From the judgment entered upon this verdict, the appeal is prosecuted.
The facts, so far as necessary to an understanding of the questions here presented, may be summarized as follows; The Self Winding Clock Company was engaged in the manufacture of clocks intended for use in school buildings, and for
On March 27, 1911, Jansson sold to the school districts above mentioned the clocks and equipment for the purchase price of which this action was brought. The sales were reported to the home office in Brooklyn, New York. An acknowledgment from that office was sent direct to the school districts. Some time during the summer of the year 1911, Jansson installed the clocks in the buildings for which they had been purchased. In making the installation, he was authorized to employ labor and make such local purchases of material as was necessary, and pay for the same. The money thus disbursed was to be reported by Jansson in his semimonthly expense account to the company, and thereupon he would be repaid the money so expended.
On December 9, 1911, school district warrants were issued, payable to Jansson for the cost of the clocks and the installation. On December 11, 1911, these warrants were presented to the county treasurer, and payment was refused for want of funds. Thereafter, the exact date of which does not appear, Jansson sold the warrants to the bank of Colville. The
On May 27, 1912, the clock company wrote a letter, addressed to the clerk of one of the school boards, inquiring why the material and labor furnished in connection with the clocks and program system had not been paid for. This was the first communication from the home office to the district, other than the acknowledgment of the receipt of the orders shortly after the contract was made. No answer being received to this letter, on August 28, 1912, another letter was addressed to the district. After this letter had been received, the clock company was informed that the warrants had been issued and delivered to Jansson. The warrants were paid on April 25, 1914. Two months or more prior to this date, the actions against the school district had been instituted. Some further mention of the facts will be made in connection with the consideration of the particular points to which they may be pertinent.
There are three general questions for determination: First, Did Jansson have apparent authority, as agent of the clock company, to receive the warrants? Second, Was there error in the admission of testimony during the trial? And Third, Did the trial court err in the instructions given or the requests refused?
I. So far as the school districts were concerned, they were justified in dealing with Jansson within what was the scope of his apparent authority. They had no knowledge of the limitation placed upon his authority by the clock company when he became its Pacific Coast representative. The letterhead stationery which Jansson used in corresponding with the •districts had his name printed thereon as Pacific Coast representative. Jansson not only had the power to sell clocks and equipment, but the installation was under his direction. and ■supervision. In installing the clocks, he was authorized to purchase material and employ labor, and pay for the same,
“Even though you have been in communication with our Mr. Jansson at San Francisco in regard to terms of settlement we think you should, in fairness to us, make response direct to this office advising us of your reasons for your long delay in making settlements.”
This letter, even though written after the sales, recognizes the right of the districts to negotiate terms of settlement with Jansson. We think it cannot be held, as a matter of law, that the school districts were going beyond the scope of Jansson’s apparent authority when the warrants were issued and delivered to him. Under the facts stated, the jury had a right to find that Jansson had apparent authority to receive the warrants.
Our attention has been called to the general rule that the collecting power of an agent is limited to his receiving for the debt of his principal that which the law declares to be a legal tender, or which by common consent is considered and treated as money. But in this case the company is in no sense harmed by reason of the fact that the warrants were issued to Jansson and by him subsequently cashed at the bank. Had he been paid cash instead of being given warrants, he would have had an equal opportunity to embezzle the funds. In addition to this, the legal and recognized way of school districts in making payments is by the issuing of warrants. The clock company, in its letter under date of February 5, 1913, which authorized one Mitchell to make collection of the account, requested the district to arrange “to give Mr. Mitchell a warrant in settlement of this account.”
II. During the trial, one member of the school board, while testifying in behalf of the districts, was permitted*
In the authority last cited, the rule is stated thus:
“Nothing is better settled than the rule that the admissions and declarations of an alleged agent or of an agent, not known to and acquiesced in by the principal or alleged principal, are not admissible for the purpose, either of proving the fact of agency, or of establishing the nature or extent of his authority. To hold otherwise would be to allow a person to establish an agency for another, merely by holding himself out as agent, or to allow one who is the agent of another for a certain purpose to extend his authority by his own declarations or acts, irrespective of the acts of the principal.”
In the case of Lemcke v. Funk & Co., 78 Wash. 460, 139 Pac. 234, Ann. Cas. 1915 D. 23, the general rule is recognized. It was there held, however, that the fact of agency having been established, the acts and declarations of the agent were admissible on the issue as to whether in fact he so held himself out and did make the contract there in controversy as the contract of his principal. The holding of
It is also claimed that another witness was permitted to testify, over objection, that Mitchell, who came to Colville in September, 1913, for the purpose of collecting from the school districts on behalf of the clock company, made statements relative to the authority of Jansson, and his embezzlement of the money belonging to the clock company. Mitchell, after Jansson had absconded, had been placed temporarily in charge of the San Francisco office. From the record in this case, it does not appear that Mitchell had any authority to bind the home office by statements relative to the authority or conduct of Jansson, and, consequently, such declarations were not properly admissible.
III. The trial court instructed the jury that, where an agent has exclusive possession of property of his principal, with authority and for the express purpose of selling it, a purchaser from such agent would have a right to rely upon the agent having authority to receive payment therefor. This instruction should not have been given. Jansson did not have possession of the property at the time the sale was made; and when it was shipped from the factory it was billed, not to him, but direct to the school district. The instruction is not applicable to the facts in this case.
The court also instructed the jury that if they should find from the evidence that Jansson had no authority to receive payment at the time payment was made, yet if they found that, subsequent to such payment to Jansson, the Self Winding Clock Company acquiesced in or ratified or did not repudiate such payment after having knowledge thereof, then the clock company was estopped to deny the authority of Jansson to receive such payment. There is no evidence in the case upon which an estoppel can be predicated. While
“Ratification, moreover, differs from estoppel, though they are often very closely associated. Estoppel requires that the party alleging it shall have done something or omitted to do something, in reliance upon the other party’s conduct, by which he will now be prejudiced if the facts are shown to be different from those upon which he relied. Ratification requires no such change of condition or prejudice: if the principal ratifies, the other party may simply avail himself of it. As soon as ratification takes place, the act stands as an authorized one, and not merely as one whose effect the principal may be estopped to deny. If there be ratification, there is no occasion to resort to estoppel. There may, however, be cases in which one may be estopped to deny that he has ratified.
“The difference in effect may be striking: ratification is retroactive, estoppel operates upon that done after the act and in reliance upon it; ratification makes the whole act good from the beginning, while estoppel may only extend to so much as can be shown to be affected by the estopping conduct.”
The court was also requested to instruct the jury that an agent employed to make sales, and selling on credit, is not authorized to subsequently collect the price in the name of the principal, and payment to him will not discharge the purchaser unless he can show some authority in the agent other than that necessarily implied in a mere power to make sales. This instruction also should have been given in order that the jury might be advised that, if they found that Jansson had no apparent authority other than to make sales, payment to him would not discharge the debt.
Another instruction requested and refused was to the effect that the fact that an agent by whom property is sold has possession of the bill or account for such goods does not authorize the purchaser to make payment to him. This instruction embodied a correct statement of the law. 1 Mechem, Agency (2d ed.), § 864. It was a proper instruction to give in this case.
Dissenting Opinion
(dissenting) — There being proof of agency, the errors complained of were without prejudice.
Dissenting Opinion
(dissenting) — I concur in the reasoning and conclusion reached in paragraph one of the majority opinion. That, it seems to me, determines the entire matter and renders most of the reasoning and all of the conclusions reached in the subsequent paragraphs of the opinion inconsistent and the matters therein discussed errors without prejudice. Under the express provisions and the spirit of our code (Rem. & Bal. Code, § 1752), requiring us to render judgment upon the merits, disregarding all technicalities, to my mind the merits are entirely on the side of respondents here, no substantial rights of appellant were so violated as to justify a reversal of the judgment, and the judgment should stand affirmed. I therefore dissent.