Opinion
12876
April 1, 1930.
Before WHALEY, J., Richland County Court, December, 1929. Affirmed.
Action by the Guignard Brick Works against the Allen University. Judgment for plaintiff, and defendant appeals.
The charge of the trial Judge and the exceptions directed to be reported were as follows:
JUDGE'S CHARGE TO THE JURYMr. Foreman and gentlemen, the plaintiff is claiming that between the 23rd of March and the 5th of April, 1928, they sold and delivered to the Allen University bricks to the value of $312.00; that demand for payment has been made and payment has been refused and plaintiff is now in Court asking for that amount with interest.
Mr. Robinson, you are asking for interest?
Mr. Robinson: It being an account stated, we think we are entitled to interest.
The Court: Is it an account agreed to to such an extent as to bear interest?
Mr. Robinson: As I understand they are not disputing any item of the account, but liability in toto; not that any particular item is incorrect, but the question of liability at all. Under that theory it seems that we are entitled to interest on the account if they are liable at all.
The Court: In other words, there is no dispute as to the amount and the amount would be correct, if the bill were due?
Mr. Frederick: We dispute everything, if your Honor please. We dispute every item, that is what my pleadings say.
The Court: I don't think it is an account stated.
Mr. Robinson: We make no point of it, the interest is an immaterial item.
The Court: So it is the amount of $312.00 in dispute.
The defendant comes into Court and denies that they bought any brick or owe anything for any brick as alleged and for its contention claims that a certain wall was built by one G.E. Curry as contractor, and Curry was not an agent of the defendant and that when the contract was fulfilled by Curry it paid its obligation in full to him.
There you have the two contentions of the respective parties. You gentlemen have to pass on the facts. Where there is a dispute you have to decide what are the true facts and come to your conclusion in the light of the law governing the parties in the case.
The plaintiff has come into Court asserting a claim, so the burden is upon the plaintiff of proving this claim by the preponderance or greater weight or greater truth of the testimony. By preponderance the law does not necessarily mean the greater quantity of testimony or the greater number of witness, but it means the greater truth of it. That testimony, in other words, in which you gentlemen have the greater faith.
In other words, where does the greater truth lie? You gentlemen have to ascertain and answer that question.
Now, from the standpoint of the law and from the standpoint of the issues to be decided, the case is one that narrows itself down considerably. The plaintiff claims here that these goods were sold to Allen University through someone acting for Allen University.
Someone had to act for it, if at all, because it is a corporate body. It is not an individual. And the defendant Allen University comes back and claims that no one had any authority to act for it nor did anyone with authority act for it, but that the goods were sold to an independent contractor.
So for the first issue that you gentlemen meet, one of the main issues in the case, is whether or not Allen University through one authorized under the law, ordered the brick. Now then, it is a question of whether there was agency. That is one issue.
Now, agency can be in several ways, as far as the law would view it. You may go and buy something from me, Mr. Foreman, and desiring to do it through an agent you may tell me that John Jones has been authorized by you to come and get a bill of stuff from me. There would be the expressed authority which you would express in words.
On the other hand, you may not tell me that you have authorized anyone to act for you and I might go ahead and sell someone goods and without any expressed authorization on your part or notice to me that he might be your agent, but there could be a time when the one who bought from me would be your agent. Now, when would that be? It would be where you were holding one out to the business world to all appearances, to all reasonable appearances as being authorized to act for you. If that one is so held out, we have apparent authority. If I, on the other hand, dealt with that one, and used ordinary care and prudence in dealing with him and relied on that apparent authority, if such be there, then the law would say to you forever after that your mouth was shut in attempting to disclaim any agency on his part. If all those circumstances were present, he would be your agent, although you haven't opened your mouth to me or anyone else to say that he was acting for you in that particular manner. That is known as apparent authority.
Now, whether or not there was apparent authority on the part of someone to act, for Curry to act for Allen University, then whether or not the agent of the Guignard people used ordinary care in relying upon these appearances, whatever they were, if there were any, are questions that you gentlemen have to decide.
If you believe that there was present circumstances there reasonably indicating authority, and if the representatives of the Guignard Brick Works used ordinary care, that care which an ordinarily reasonable prudent business man under like circumstances would have used in relying upon that apparent authority, if such were there, then the law would say that that party was an agent.
Now, was there such an agency on the part of Curry for Allen University? I cannot answer it, because the law tells me that that is something you gentlemen have to ferret out and that you gentlemen have to answer.
Now, if there was no such holding out there was no such apparent authority for Curry to act for the Allen University, then Allen University would not owe this debt.
Even if there were appearances tending reasonably to show that Curry might have authority as agent for Allen University, still if you believe that the representative of the Guignard Brick Works did not use that care which an ordinarily reasonable prudent business man would have used under all the circumstances and if an ordinarily reasonable prudent man, under these circumstances, would not have relied and considered that man an agent of Allen University, then Allen University would not be liable, because there would be no agency. If they sold to that man, they sold at their own risk. They sold to Curry and could only look to Curry, if you find that to be true.
Now, what were the circumstances? I say again, you gentlemen have to ferret out what the circumstances were and come to your conclusion as to whether there was that apparent authority there or whether it was not there.
Now, there is another way in which one may make themselves liable. It all depends on the surrounding circumstances of one's acts. As it is said in the law, admissions may sometimes be implied from the mere silence of a party, if the party who is silent knows of his rights at the time of being silent and reasonably fails to assert them. You have to take all the facts and circumstances here and say whether there was silence and if there was, what would the surrounding circumstances of the silence say whether or not in the last analysis Allen University has made itself liable for this account or whether it has not.
If you believe that the goods were sold to Curry as an independent contractor and solely as such, then in that event, Allen University could not be held liable.
Write your verdict whatever it may be on the back of the summons and complaint.
If you find for the plaintiff, the form of your verdict would be, we find for the plaintiff $312.00, because you would have to find the full amount if you find at all, write out the amount in words and not in figures and sign your name after that and write the word foreman after your name.
If you find for the defendant, the form of your verdict will be, we find for the defendant, and sign your name after that likewise and put the word foreman after your name.
Is there any general proposition I have left out for the plaintiff?
Mr. Robinson: None.
The Court: Is there any general proposition I have left out for the defendant?
Mr. Frederick: I don't know whether I caught, your Honor, that one before dealing with an agent, or one who may be taken for an agent, must ascertain as to whether or not he has authority and power to act as agent.
The Court: He does not necessarily have to go that far. If the circumstances surrounding one is such as to reasonably indicate to a person that that one is an agent of another, then the party out in the business world who should attempt to deal with that one surrounded with those appearances, if there be such there, does not necessarily have to ascertain if that one has actual authority. All that that one has to do who is dealing with that person surrounded by those appearances, if there are such, all that he has to do as I have said before, is to use that care which an ordinarily reasonable prudent business man would use under like circumstances before relying upon those appearances whatever they may be. I had already given that, but I give it in that way to make it as clear as I can. That is as far as I can go in charging that.
EXCEPTIONS1. His Honor erred in not granting a non-suit, for that,
(a) There is no dispute as to the facts from which agency by estoppel could be inferred, there being no agency in fact proven or attempted to be proven, and said facts are insufficient to infer such an agency.
(b) The orders being given over some 'phone from somewhere by someone preclude the idea of defendant holding out the giving of the orders as its agent, there being no evidence that defendant knew of the orders or was concerned with them.
(c) The mere fact that the bricks ordered by 'phone were used by a man who two or three months before had, in an office of defendant's building, purchased and paid for a supply of bricks is not sufficient to make him an agent by implication.
(d) Plaintiff was negligent in not ascertaining for a fact whether or not the bricks were being ordered by defendant, and not informing defendant of such orders until the work was completed and the contractor fully paid and gone to another State.
II. His Honor erred in not directing a verdict for defendant, as moved, for that,
(a) The uncontradicted testimony is that G.E. Curry was an independent contractor and all bricks delivered were to G.E. Curry for the erecting of a wall for defendant.
(b) Plaintiff was duty bound to ascertain whether or not G.E. Curry or anyone else ordering bricks had the authority to do so in the name of defendant, if same were so ordered.
(c) There is no evidence to show that defendant held out G.E. Curry as its agent at any time, certainly not at the time the 'phone orders, the subject of this suit, were received by plaintiff.
(d) The mere courtesy of allowing G.E. Curry, the contractor, the use of one of its offices for the transaction of his business is not sufficient to create an agency by estoppel in reference to the subsequent 'phone orders two or three months after plaintiff dealt with him for the first orders which were paid for by him.
III. His Honor erred in charging the jury as follows:
"Now, whether or not there was apparent authority on the part of someone to act, for Curry to act for Allen University, then whether or not the agent of the Guignard people used ordinary care in relying upon those appearances whatever they were, if there were any, are questions that you gentlemen have to decide.
"If you believe that there was present circumstances there reasonably indicating authority, and if the representatives of the Guignard Brick Works used ordinary care, that care which an ordinarily reasonable prudent business man under like circumstances would have used in relying upon that apparent authority, if such were there, then the law would say that that party was an agent.
"Now, was there such an agency on the part of Curry for Allen University? I cannot answer it, because the law tells me that that is something you gentlemen have to ferret out and that you gentlemen have to answer."
The error being,
(a) The facts from which agency by estoppel being undisputed it was a question of law for the Court and not for the jury.
(b) The testimony of plaintiff itself was that it did not make any investigation, but acted merely on assumption, and this too when the orders came from somewhere over the 'phone, and by someone, the identity of whom it knew not.
IV. His Honor erred in charging the jury as follows:
"Now, what were the circumstances? I say again, you gentlemen have to ferret out what the circumstances were and come to your conclusion as to whether there was that apparent authority there or whether it was not there.
"Now, there is another way in which one may make themselves liable. It all depends on the surrounding circumstances of one's acts. As it is said in the law, admissions may sometimes be implied from the mere silence of a party, if the party who is silent knows of his rights at the time of being silent and reasonably fails to assert them. You have to take all the facts and circumstances here and say whether there was silence, and if there was, what would the surrounding circumstances of the silence say, whether or not in the last analysis Allen University has made itself liable for this account or whether it has not."
The error being,
(a) In impressing the jury with the fact that even though defendant was in no way responsible for the ordering of the bricks, yet because it said nothing immediately on the rendering of statements after the contractor had been paid in full and departed, it became responsible.
(b) The charge was too vague and misleading.
V. His Honor erred in not granting a new trial, for that, the verdict is not supported by the evidence, but rather contrary to it.
N.J. Frederick, for appellant, cites: Agency: 104 S.C. 152; 140 S.E., 804; 2 C.J., 436; 61 N.Y.S., 727; 123 S.E., 846; 132 S.C. 340; 134 S.E., 428. Duty to charge: Ar. 5, Sec. 26, Const., 112 S.E., 78.
Mr. D.W. Robinson, Jr., for respondent, cites: As to agency: 128 S.C. 470; 114 S.C. 488; 146 S.C. 385; 147 S.C. 27; 131 S.C. 62; 131 S.C. 51; 132 S.C. 212; 143 S.C. 375; 135 S.C. 365; 137 S.C. 319; Jones on Ev., 289; 21 C.J., 1150; 140 S.C. 388; 144 S.E., 554.
April 1, 1930. The opinion of the Court was delivered by
This action by the plaintiff, Guignard Brick Works, against Allen University, defendant, was commenced in the County Court for Richland County, May 15, 1929, for recovery of the sum of $312, alleged to be due the plaintiff by the defendant for a certain lot of brick alleged to have been sold and delivered unto the defendant by the plaintiff. Issue being joined the case was tried before Hon. M.S. Whaley, Judge of the County Court of said County, and a jury. The date of trial is not stated in the transcript of record. At the conclusion of the testimony for the plaintiff the defendant made a motion for a nonsuit, which motion the Court refused. Whereupon the defendant introduced testimony, and at the conclusion of all of the testimony the defendant made a motion for direction of a verdict, which motion the Court also refused, and the case was submitted to the jury. The jury returned a verdict against the defendant for the amount involved, $312. From the entry of judgment on the verdict the defendant has appealed to this Court.
The exceptions, five in number, with several of the same containing a number of subdivisions, present for consideration the following questions:
(1) Did his Honor, Judge Whaley, commit error of law in refusing to grant defendant's motion for a nonsuit?
(2) Was the defendant entitled to a direction of a verdict?
(3) Did his Honor commit prejudicial error in his charge to the jury?
(4) Should defendant's motion for a new trial have been granted?
As to the alleged error in refusal to grant a nonsuit and refusal to direct a verdict for defendant, an examination of the testimony, as disclosed by the transcript of record, convinces us that the position of appellant is not well taken.
It is the contention of the plaintiff that between the dates of March 23, 1928, and April 5, 1928, the plaintiff sold and delivered to the defendant a certain lot of brick, and that the defendant has failed and refused to pay for the same, the amount involved being $312. The defendant denied owing the plaintiff the alleged claim, denied having made the alleged purchase, and, further, interposed the following additional defense:
"1. That about the time alleged in the complaint, a supply of bricks was delivered on the grounds of the defendant, but, as it is informed and believes, they were purchased by one G.E. Curry with whom defendant had entered into a contract to build a wall around the grounds of defendant for a definite sum.
"2. That the said G.E. Curry was not at any time the agent of defendant, nor was any notice given defendant by plaintiff that it was furnishing bricks and would look to it for payment.
"3. That in accordance with the said contract between the defendant and the said G.E. Curry, defendant paid in full its obligation after the completion of the said work to the said G.E. Curry."
The testimony tends to show that the plaintiff was at the time in question and for a long time prior thereto engaged in the business of the manufacture and sale of brick, and for years had been delivering to the defendant, Allen University (hereinafter referred to as the University), brick on 'phone orders; that in January, 1928, the office of the plaintiff received a 'phone call from the University, stating that it was the University calling, and that the University desired to purchase some brick and requested the plaintiff to send its representative to the University for that purpose; that in response to that 'phone call and request Mr. Long, who was connected with the plaintiff, went to the office of the University where he was met by G.E. Curry, with whom Mr. Long talked regarding the sale of the brick, pursuant to said request made over the 'phone. It appears from the testimony that Mr. Long had not met Curry before; neither did he know the officers in charge at the University. The testimony tends to show that on that occasion, while Mr. Long was at the time at the office of the University, Curry ordered from the plaintiff, through Mr. Long, for the University, a lot of brick and the plaintiff delivered the same and billed the same to the University, and the same was charged on the books to the University. It appears from the testimony of Mr. Long that at the time the order was given for this lot of brick Curry told Mr. Long that the brick were for the University, and at that time, according to the testimony of Mr. Long, Curry purported to be connected with the University, and that he (Long) had no reason to doubt that Curry was connected with the University, and, further, that the order was taken for the University. Mr. Long further stated in the course of his testimony that the bill for this order was paid for in cash, by Curry, in the office of the University. The testimony further tends to show that in the month of March of the same year, 1928, the plaintiff received another telephone call from the University, the party calling stating that it was the University calling, and gave another order for some brick to be sent to the University for the University, and, pursuant to said order, the testimony tends to show, the order was filled, the brick sent to the University and delivered there, billed to the University, and an entry made on the books of the plaintiff against the University for the same. There is also testimony tending to show that the brick in question were used in the construction of a wall on the University grounds. There was also testimony which tended to show that the University was notified within a reasonable time that the brick were charged against it, and that the plaintiff looked to it for payment; it appears that a number of letters were written by the plaintiff to the University, inclosing a statement of the account outstanding, to which letters according to the testimony, the officers of the University did not reply and did nothing to indicate that it was not responsible for the account or disputed the same. The testimony also tends to show that later, after not being able to get a reply to the several communications addressed to the University, the plaintiff sent a special collector to the University, who talked to the president of the University and other officers of the University, and the president, on the first call of the collector, expressed surprise that the bill had not been paid, and said nothing to indicate that the University was not responsible for the claim; that later those in charge of the University claimed that the said G.E. Curry was responsible for the claim and had received the money for paying the claim. Pursuant to request of the University officers the plaintiff wrote the said G.E. Curry, but received no reply from Curry. It is true that these inferences, to which we have called attention, may not be the only inferences of which the testimony is susceptible, but in our opinion are reasonable inferences to be drawn therefrom. The testimony introduced by the defendant in the main tended to establish defendant's claim, as set forth in its answer, but since the testimony taken as a whole is susceptible of more than one reasonable inference, and in view of the fact that in passing upon motions for a nonsuit and motions for direction of a verdict it is the duty of the Court to consider the testimony in the most favorable light for the plaintiff, we think his Honor, Judge Whaley, properly refused to grant said motions and committed no error in submitting the case to the jury. We think there was ample testimony as to the agency of G.E. Curry for the defendant to take the case to the jury, and in this connection we call attention to the rule that agency may be inferred from the course of conduct. We think that his Honor, Judge Whaley, was right in leaving it to the jury to say, under the facts and circumstances of the case, whether Curry was the agent of the University in incurring the obligation in question, and whether or not the plaintiff had the right, under the facts and circumstances of the case, to rely upon Curry's apparent authority of agency of the University in incurring the obligation in question. We also think that there was sufficient evidence of estoppel on the part of the University to warrant the trial Judge in submitting that question to the jury.
As to the allegations of error imputed to the trial Judge in his charge to the jury, we are unable to agree with appellant. We find nothing in the charge that was unfair to the defendant, and, considering the charge as a whole, the law was correctly stated and the issues impartially submitted.
As to the question raised with reference to his Honor's refusal to grant the defendant's motion for a new trial, that question is disposed of by what we have stated in our discussion of the foregoing questions. The only assignment of error under the exception raising this question is "that the verdict is not supported by the evidence, but rather contrary to it." As hereinabove stated, there was testimony that warranted the trial Judge in sending the case to the jury. Under such circumstances the ruling of the trial Judge in refusing to disturb the verdict will not be reviewed by this Court.
The exceptions are overruled, and the judgment affirmed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN, BLEASE and STABLER concur.