Produce Co. v. Meyer. PRINCIPAL AND AGENT-CUSTOM. [Cuyahoga (8th) Circuit Court, February 29, 1904.] MAHLER-WOLF PRODUCE Co. v. FERD MEYER. PRINCIPAL NOT BOUND BY AGENT'S GUARANTY, WHEN. A produce commission firm sent out a traveling agent to solicit the consignment of peaches on a strictly commission basis; being unable to obtain fruit at a certain town without guaranteeing it should net the shipper a certain price, he gave such guaranty and fruit was shipped thereunder, but without notice thereof to the consignee and without inquiry on the part of the shipper as to the agent's authority to make the guaranty; in the absence of any evidence showing a usage or custom of the produce commission business to make such guaranty: Held, that the guaranty was not within the scope of the agent's authority, and his principal was not bound by it. ERROR to the court of common pleas of Cuyahoga county. Horr & Lewenthal, for plaintiff in error. Johnson & Dunlap, for defendant in error. WINCH, J. This case involves the application of the law of agency. It appears that in 1897 plaintiff in error was engaged in the produce commission business in the city of Cleveland and sent one Sidney Kirton to Mifflin, Pa., to solicit shipment of peaches to be sold by plaintiff in error on commission in Cleveland. Kirton found he could get no peaches shipped from Mifflin without a guaranty that they would bring a certain price; he thereupon procured Ferd Meyers, defendant in error, to ship two car loads of peaches to the firm in Cleveland, guaranteeing that Meyers should net at least eighty cents a crate for the first car load and sixty cents a crate for the second car load. The peaches were sold in Cleveland and, after deducting freight and commissions, the balance was paid Meyers, but this balance was some $400 less than the amount guaranteed by Kirton, and in 1900 Meyers brought suit in the common pleas court of Cuyahoga county, Ohio, against the Mahler-Wolf Produce Company, and recovered a verdict for the amount he claimed, and judgment was rendered on the verdict. On the trial it was shown that the produce company had never authorized Kirton to make the guaranty claimed and had no knowledge that he had made such guaranty until the suit was brought. It was further shown that Kirton was employed as a traveling agent, his express authority being to solicit consignments of fruit on a Cuyahoga County. commission basis only; that his firm had never purchased fruit or given any guaranty, and no evidence was introduced as to the custom or usage of the business. Plaintiff in error claims the judgment should be reversed because the verdict is not sustained by sufficient evidence; that is, the agent was without express authority to guarantee what the peaches would bring; he had no authority to so guarantee, implied from the nature of the business, and therefore Kirton exceeded his authority and the produce company is not bound by his guaranty. Defendant in error says that Kirton could not have bought peaches at Mifflin without the guaranty, and therefore the power to guarantee must be considered incident to and implied from his employment. Both parties quote the law of agency as applicable to this case, from 1 Am. & Eng. Enc. Law (2 ed.) 985 to 997. "A principal is bound by the acts of the agent, whether general or special, within the authority he has actually given him, which includes not only the precise act which he expressly authorizes him to do, but also whatever usually belongs to the doing of it, or is necessary to its performance.. "Beyond that, he is bound by the acts of the agent within the apparent authority which the principal himself knowingly permits the agent to assume, or which he holds the agent out to the public as possess ing." 1 Am. & Eng. Enc. Law (2 ed.) 988. "Parties in entering into contracts are presumed to have in view the established usages and customs of the particular trade or business with reference to which they are contracting. Third persons, in dealing with an agent have a right, therefore, to presume that he has been clothed with all the powers with which, according to the custom of that particular business, similar agents are clothed. "The principle is elementary and uniform that a power given an agent in a transaction carries with it the authority to do whatever is usual and necessary to carry into effect the principal power. 1 Am. & Eng. Enc. Law (2 ed.) 996, 997. "The authority of a general agent is not unlimited, but must necessarily be restricted to the transactions and concerns within the scope of the business of the principal; and if he exceeds the authority, the principal is not bound." 1 Am. & Eng. Enc. Law (2 ed.) 990. "It is the duty of all parties dealing with an agent to inquire into the nature and extent of his authority and deal with him accordingly." 1 Am. & Eng. Enc. Law (2 ed.) 994. Let us apply the above principles of law to the facts of this case: Produce Co. v. Meyer. The agent had no express authority to make the guaranty; it cannot be said to be within his apparent authority, for such guaranties are not usual or necessary in the carrying on of a commission business. Had the proof shown that plaintiffs in error, in addition to their business as factors, sometimes made purchases on their own account, by themselves or through agents, or even that such purchases were made or guaranties given by commission merchants, there would, perhaps, be some ground upon which to hold the plaintiff in error for the unauthorized guaranty of its agent. But counsel for defendant in error calls attention to the fact that the agent could procure no peaches in Mifflin without the guaranty. From this it is argued that the guaranty was necessary to doing any business in that town, and that the agent's mission there would have been fruitless and his employer's time and money wasted, if the guaranty had not been made; hence the authority to guarantee became necessary to the accomplishment of the duties of the agent. The proposition is not sound. The agent was hired to procure goods to be sold upon commission; the sole business of plaintiff in error was to sell goods on commission. Adopting the contention of counsel for defendant in error makes the transaction practically one of sale and purchase; indeed the petition is framed on that theory, suit being for balance due on an account for peaches at eighty cents. and sixty cents a crate. In no sense can the guaranty be held necessary to the carrying on of a commission business, however necessary it might be in the sale and purchase of goods. Further, it was not shown that the produce company knew of the conditions on which alone peaches would be shipped from Mifflin. It was shown that defendant in error made no inquiries into the nature and extent of the agent's authority, although it knew the business his principal was engaged in. "Third parties dealing with an agent are put upon their guard by the very fact, and do so at their own risk. 1 Am. & Eng. Enc. Law (2 ed.) 987. If Ferd Meyers, before shipping the peaches, had telegraphed his consignee, he would not have been deceived by the guaranty which he claims the agent made him. The plaintiff in error should not be prejudiced by this neglect of Ferd Meyers. We hold that the agent had no authority, express or implied, to make the guaranty relied upon by defendant in error, and that it was not binding upon the plaintiff in error, it never having ratified the same. Cuyahoga County. The conclusion here reached is the same as was reached in the case of Quinn v. Carr, 4 Hun (N. Y.) 259 (6 Thompson & Cook 402), where it appears that a commission house sent its agents into the country to solicit consignments of produce on commission, and the agent guaranteed a shipper that his butter would bring a certain price. The court held that such guaranty was not within the scope of his authority. Defendant in error having failed to prove the agent's authority, the verdict should have been for the defendant below, and for error in overruling the motion to direct a verdict for defendant and in overruling the motion for a new trial, on the ground that the verdict was against the weight of the evidence, the judgment is reversed. Hale and Marvin, JJ., concur. WILLS-EVIDENCE—JURY. [Auglaize (3rd) Circuit Court, November 25, 1903.] Day, Norris and Parker, JJ. (Judge Parker, of the Sixth Circuit, sitting in place of Judge Mooney, of the Third Circuit.) LYDIA M. WEST, EXRX., v. LILLIAN KNOPPENBERGER. 1. TESTAMENTARY CAPACITY ALTHOUGH BODY AND MIND ENFEEBLED, ETC. A person may possess testamentary capacity even though enfeebled in body and mind by age and disease; though his memory may be impaired in a degree, and his mind disturbed by hallucinations or delusions (not necessarily influencing the mind in making testamentary disposition of property); though his mind may suffer discomposure and derangement in consequence of melancholy, grief, misfortune, sickness or disease (not of a nature to deprive him of the rational faculties common to men); and though he lacks contractual capacity or capacity to transact the ordinary business of life. Hence, it is improper to charge the jury in a will contest that "in order to be able to make a will it is necessary that a man shall have mental capacity sufficient for the transaction of the ordinary business of life;" such an instruction is not cured by giving elsewhere in the charge proper rules and criteria for determining testamentary capacity, but which do not qualify such improper charge. 2 BURDEN OF PROOF UPON CONTESTANTS TO SHOW LACK OF TESTAMENTARY CAPACITY. The order of probate is prima facie evidence of the due execution, attestation, and validity of a will, and when such order is offered in evidence in an action to set the will aside, the burden of proof is upon the contestants to prove by a preponderance of evidence that testator was of unsound mind and memory at the time of executing his will, or, was under restraint or control of undue influence. 3. DEFENDANT IN WILL CONTEST NOT REQUIRED TO SHOW AFFIRMATIVELY TESTAMENTARY CAPACITY. A charge from which the jury may assume that the burden of proof is upon the defendants in a will contest to show affirmatively the testamentary capacity West v. Knoppenberger. of testator, is improper; the charge should require contestants to show affirmatively lack of testamentary capacity before the will could be set aside. 4. JURY MUST FIND THAT TESTATOR DID NOT EXERCISE HIS OWN FREE WILL. An instruction that there is no valid will unless the jury believe from the evidence that testator, of his own free will, not only intended to make such disposition of his property as made in the alleged will, but was also capable of knowing what he was doing, understanding to whom he was giving his property and in what proportions, and of whom he was depriving it as his heir and who would otherwise have inherited it, and was also capable of understanding the reasons for giving or withholding his bounty to them, is improper; the charge should have been to the effect that the will was valid unless the jury find from the evidence that testator did not make such disposition purposely and of his own free will. 5. HYPOTHETICAL QUESTION CONTAINING INDICIA OF LACK OF TESTAMENTARY CAPACITY, COMPETENT. A hypothetical question propounded to an expert by the contestant in an action to set aside a will which indicates what contestant claims to be the physical and mental condition of testator at the time of making his alleged will, and that as a consequence of such condition he was of unsound mind, which indicia of lack of testamentary capaci y are controverted in the case, is competent where there is evidence tending to establish the facts assumed in the question; and while an answer directly responsive to such question to the effect that testator was mentally unsound would be insufficient to set the will aside, yet it is competent as tending to establish lack of testamentary capacity. 6. EXPERT'S OPINION OF NO VALUE UNLESS FACTS ASSUMED IN HYPOTHETICAL QUESTION ARE FOUND TRUE-IMMATERIAL FACTS, ETC. The opinion of an expert based upon facts assumed in a hypothetical question 7. WHETHER FACTS ASSUMED IN HYPOTHETICAL QUESTIONS ARE MATERIAL OR IMMATERIAL NOT FOR JURY. It is not within the province of the jury to determine what facts assumed in a hypothetical question propounded to an expert are material or immaterial. The questions should be so framed as to include only such facts as the evidence may warrant the jury in finding to exist, and not so as to allow the jury to speculate upon what is material and what immaterial. A fortiori, is this true where the question assumes but two main facts both of which seem to have been regarded as material by the experts. |