Thrall v. Wilson , 17 Pa. Super. 376 ( 1901 )

Opinion by

Rice, P. J.,

In May, 1896, the defendant bought of Stine, a retail grocer, his stock of goods and put Stine in possession as the manager of the business at a salary, to be paid monthly, “ equal to one half of the net profits of the mercantile business so conducted.” The defendant was engaged in a different business elsewhere to which he gave his chief attention, but he admits that he visited the store two or three times a week. From time to time, while so conducting the business, Stine bought goods from the plaintiffs for the store and made payments on account. This action of assumpsit was brought to recover the balance alleged to be due “ for goods sold and delivered by the plaintiffs to the defendant through H. G. Stine, his agent.”

It is an elementary principle that acts of an agent within the scope of his ostensible, but in excess of his real, authority are binding upon his principal as to third persons who have relied upon the agents possessing such authority as he appears to have. Therefore, notwithstanding the agreement between Stine and the defendant that no purchases should be made by Stine without the written consent of the defendant first had for that purpose, the foregoing facts made a prima facie case for tlie plaintiffs, as the jury must have understood from the following explicit instructions of the court: “ When one places his business in the hands of another, and that business requires the buying of goods and the selling of goods, there the law implies that he is the agent to buy. In other words, in carrying on that business he stands in the place of the principal, the owner, and if there was no limiting of the plaintiffs, Thrall & Company, we say to you that whatever Stine purchased and belonged to that store, and was in the line of that business, the principal, Wilson, would be liable for, whether it would be much or little.”

But a third person having notice of the extent of the authority expressly conferred is not justified in assuming powers in the agent in excess of such authority. Much less is he justified in ignoring the special limitations upon the authority of the agent to deal with him to which he has given his express assent. A principal may put one in charge of his business with the apparent authority, so far as the general public is concerned, of a general agent to buy, yet if he limits his authority as to the persons from whom he shall buy or as to the amount of debt that he may incur, third persons who, with the knowledge of these limitations, permit the agent to exceed his authority in his dealings with them do so at their peril. To be more explicit, if at the beginning of their dealings with Stine as the representative of the defendant the latter notified the plaintiffs not to sell Stine goods, and give him credit beyond a certain amount, something more was required to make the defendant liable for the excess than proof, merely, that the goods were ordered by and delivered to Stine. See White v. Cooper, 3 Pa. 130. There was ample evidence, we might say a preponderance of evidence, to sustain the defendant’s allegation that when the plaintiffs solicited the priviledge of selling goods to Stine the defendant expressly limited them as to the amount of such sales, and subsequently warned them not to go beyond that amount. But as there was a denial of this allegation the question was for the jury, and in our opinion was submitted to them with adequate clear and impartial instructions. There was some obscurity in the evidence as to the amount of the limit, whether $150 or $200, and the jury resolved that question in favor of the plaintiffs : but that the latter were limited as to the amount of the credit which they might give Stine as the defendants’ representative is conclusively established by the verdict.

We come now to the question raised by the answer to the plaintiffs’ point, (fifth assignment) and the instructions complained of in the third assignment. In August, 1897, the defendant sold the entire stock of goods in the store to one George Stadden. We may assume for the purposes of this discussion that in this sale and in the retail sales previously made all the goods bought of the plaintiffs by Stine in excess of the limit were disposed of for the defendant’s use. It is argued from these premises that the defendant is liable to the plaintiffs for the price at which they were sold to Stine, upon the ground that he accepted the benefit of Stine’s contract with them, and, therefore, is bound by all its terms. In his general charge the learned judge stated the plaintiff’s proposition fairly and after giving the reason why it could not be affirmed without qualification said: “ But we do affirm the proposition made by the plaintiffs that if Wilson, knowing that goods had been brought there into his store, in excess of $150, and he took the money which the sale of them produced, when he might have repudiated and declined to own them, and might have sent back the goods in excess, then he would be liable, because he would have been getting the benefit of the goods he had in excess, that is, more than he provided for in making his bargain.” The instructions given in answer to the plaintiffs’ point (fifth assignment) were to the same effect. In considering these instructions it is to be borne in mind that this is not an action to recover the amount the defendant received from the goods bought by Stine in excess of his authority. For as to that there was no evidence. The action was to recover the price at which they were sold to Stine, and the point submitted by the plaintiffs called for binding instructions to the effect that they were entitled to recover that amount. The question, therefore, is whether there was such ratification of the agent’s unauthorized act as was equivalent to prior authority. Upon that ground alone (if at all under the pleadings and evidence in the present case) was the plaintiff entitled to an affirmance of his point. The general rule is, that ratification of an unauthorized act of an agent must, to be valid, be the voluntary act of the principal, he at the time of the supposed ratification being fully informed of all material facts and circumstances attending the unauthorized act: 1 P. & L. Dig. of Dec. 674. Unquestionably, ratification may be, and often is, implied from the retention of goods bought by an agent in excess of his authority, but where this implication is made it is upon the ground, that the principal had an election, either to disavow the unauthorized act of his agent and tender a return of the goods or to keep the goods and pay for them. It is thus seen that it was important for the jury .to determine whether the defendant knew that’ Stine had incurred debt beyond the limit for goods bought of the plaintiffs and whether the goods so bought could be identified and returned. If at the time the defendant learned this fact he could have returned the goods, his subsequent conversion of them might raise the implication of ratification, but if at that time they had been sold or were so commingled with the stock of similar goods in the store that they could not be identified and returned, we think the court was right in saying that the defendant would not be bound for the price at which Stine had bought them. Because as the learned judge said: ‘‘ We do not know whether the goods in excess of the $150 were sold for what they cost, or for less or more.” As to one who has induced, or knowingly permitted, an agent to violate his instructions as to the amount of debt he may incur, it is no hardship to hold, that the limit of the liability of the principal, who is placed in the situation above described is the benefit actually received by the latter from the transaction, and that in this case, the burden of proving what specific goods, and their value, were converted to his own use by the defendant, after notice that his agent had exceeded his authority, rested on the plaintiffs. It follows that the court could not have affirmed the plaintiffs’ point without qualification ; and we find no cause for reversal in the qualification given, or in the charge as a whole. That a judge in charging a jury gives reasons for his conclusions and in doing so elaborates more than is necessary is not error, provided, as was the case here, these explanatory instructions are not irrelevant, nor erroneous, nor so confusing as to be misleading. As we had occasion to remark in Cote v. Schoen, 1 Pa. Superior Ct. 583 : “ A careful judge will not always content himself with a dogmatic statement of the law applicable to the case, and even if he is not bound to go further, it is certainly not error to point out to the jury the just and reasonable principles upon which it is based.” The extent to which a trial judge ought to go in reviewing, analyzing and. commenting on testimony depends very largely upon the circumstances of the case, and, to some extent, upon the line of argument pursued by counsel in addressing the jury. Generally it must be left to his sound discretion. It is only in exceptional cases, as for example, where it plainly appears that the charge is so inadequate in this regard as to be misleading, or where by indirection it withdraws the attention of the jury from material issues or evidence, or from matters entering as necessary elements into the decision of the question at issue, or where its tendency as a whole is to unduly magnify the importance of the proofs introduced by one party and to belittle those introduced by the other party, that the court will be reversed upon a general exception to the entire charge: Blank v. Barnhart, 17 Pa. Superior Ct. A careful examination of the charge in the light of evidence has failed to convince us that either of the first five assignments can be sustained.

It is argued in support of the two remaining assignments that if the judgment as ordered by the court stands, it compels the plaintiffs to receive the $150 paid into court as a tender, less the prothonotary’s statutory commission, and $50.00 in satisfaction of the verdict in their favor for $200. We are not convinced that this is the necessary construction of the order; but, to remove all doubt upon that point, we will amend the judgment so as to express the evident intention of the jury and the court below, as we have power to do under sec. 8, par. 8 of the Act of June 24, 1895, P. L. 212.

Now July, 1901, as of March 28, 1900, judgment is entered in favor of the plaintiffs on the verdict for $200, together with interest thereon from December 15, 1899, the date of the verdict, and accrued costs in the court below, with leave to the plaintiffs to take out of court the sum of $150, less prothonotary’s commission on the last mentioned sum and to issue execution for the balance of the judgment. As thus modified and amended the judgment is affirmed.