Houston Cotton Oil Mill v. Bibby , 43 Tex. Civ. App. 100 ( 1906 )

This suit originated in the Justice's Court. It was brought there by appellee against appellant and D. A. Grigg to recover $169.85, alleged to be due upon a written contract averred to have been made by appellant in the name of D. A. Grigg with appellee by which the latter agreed to purchase cotton seed at the city of Tyler in the name of Grigg for the appellant, who, according to the allegations, in consideration of his services, agreed to pay him (Bibby) one dollar per ton for all the cotton seed purchased under such contract.

The appellant answered by a general denial and plea ofnon est factum, denying under oath the execution of the contract sued on, or that it was executed by its authority or was ever ratified.

The appellee dismissed his suit as to Grigg, and the trial in the Justice's Court having resulted in a judgment in favor of appellee an appeal was taken by the company to the County Court, where judgment was rendered against it again.

The evidence shows conclusively that Grigg, while appellant's agent to purchase cotton seed, had no authority whatever to employ any one else in behalf of the company to make such purchases, and that it was clearly beyond the scope of his apparent authority to make such contract of employment. It also shows beyond controversy that appellant never acquiesced in or ratified Grigg's employment of the appellee. The contract sued upon shows upon its face that it was entered into between Grigg and Bibby in their own names and in their own behalf, the appellant's name not being mentioned or in any way connected with it.

Upon no theory deducible from the evidence can the judgment be sustained, or the liability of the appellant established. For the rule is well settled that where an agent, having undertaken the performance of some duty to his principal, employs upon his own account a servant or subagent to assist him, the subagent must look to his immediate employer, the agent, and not the principal. (Mech. Ag., secs. 197, 690; Williams v. Moore, 24 Teaxs Civ. App., 404; National Cash Register Co. v. Hagan Co., 83 S.W. Rep., 727.)

As the case was fully developed upon the trial in the court below, and it conclusively appearing from the evidence that the appellee was not entitled to recover anything, the judgment of the County Court is reversed and judgment is here rendered for the appellant.

Reversed and rendered.