Supreme Court of South Carolina, 1919

Lide v. Hartsville Oil Mill

Supreme Court of South Carolina · Decided February 4, 1919 · MR. JUSTICE WATTS.<page_number>Page 452</page_number>

98 S.E. 199; 111 S.C. 448; 1919 S.C. LEXIS 44 (South Eastern Reporter)

Counsel

Messrs. Miller Lawson , for appellant, submit: That, upon the undisputed evidence, the relation of buyer and seller, not agency, existed between McDonald and defendant, for which reason his Honor should have directed a verdict or granted a new trial: 138 S.W. 156 ; 2 Corpus Juris 425; 55 Am. Dec. 456; Mechem on Agency, vol. I, sec. 45; 59 Am. Rep. 541; 137 Fed. 586; 102 U.S. 235 ; 26 L. Ed 160 ; 2 Corpus Juris, pp. 424, 425, 437; 31 Cyc. 1193; 83 S.C. 228 ; 31 S.C. 378 ; 73 S.C. 213 ; 1 Mechem on Agency, sec. 44, et seq.; 246 Pa. 881 ; Mechem on Sales, sec. 41. The trial Judge should have construed the written contract: 17 S.C. 477 ; 24 S.C. 359 ; 31 S.C. 378 ; 46 S.C. 220 ; 59 S.C. 591 ; 66 S.C. 18 . There being no conflict of testimony his Honor should have directed a verdict for defendant: 104 S.C. 152 . Plaintiff in dealing with McDonald acted at his peril, and was bound to ascertain not only the fact of agency, but the nature and the extent of the authority , 1 Mechem on Agency, sec. 743; 3 Cush. 511; Mechem on Agency, vol. I, sec. 758; 1 Mechem on Agency, sec. 750; (Mich.) 21 Am. St. 563, and note; (Mich.) 4 Am. St. 885, and note. Messrs. E.C. Dennis and J. Monroe Spears , for respondent. Mr. Dennis submits: " In doubtful cases the question must be determined upon a review of all that passed between the parties before and contemporaneously with the dealings under consideration whether the relation created is that of principal and agent or seller and buyer: 31 Cyc. 1205; 31 Cyc. 1237. It is the duty of an agent to inform his principal of all material facts, and a principal is affected with knowledge of all material facts of which the agent receives notice or acquires knowledge, which, acting in the course of his employment, and within the scope of his authority, although the agent does not in fact inform his principal thereof: 31 Cyc., p. 1587. An agency created by writing does not preclude evidence by parol to show a further special agency to do a particular act: 7 Rich., p. 45. It is competent to prove by parol an agent's authority to make a contract to buy land for his principal: 72 S.C. 556 . If the evidence be conflicting as to whether an agency is limited, it is not proper for Judge to instruct jury that agent was not authorized to make contract in question. There being competent evidence on the issues in this case, it would have been improper to direct verdict, and it is not error of law to refuse a new trial: 73 S.C. 48 . Agency is a question of fact for the jury: 56 S.C. 120 . A principal who contends that his agent has acted outside of the scope of his instructions, must show it by the preponderance of the evidence: 47 S.C. 139 .

Opinion of the Court

The opinion of the Court was delivered by

Mr. Jus,Tick Watts.

*452 This was an action to recover $400, the value of certain cotton seed delivered by plaintiff to J. H. McDonald, the alleged agent of the defendant, for the purchase and exchange of cotton seed and whom it was alleged defendant held out to the public as its agent for said purchase, all of which defendant denied. The case was tried by his Honor, Judge Memminger,'and a jury, at the Fall term of Court, 1917, for Darlington county. The defendant moved for a directed verdict, which was refused. The jury rendered a verdict in favor of plaintiff for full amount claimed. After entry of judgment, defendant appealed, and by six exceptions alleged error, and asked reversal. Exceptions 1, 2, 4. 5, and 6 are all based upon the contention that the Court should have directed a verdict for the defendant.

1 An examination of the evidence discloses a great deal of testimony that should have been submitted to the jury, whether McDonald was the agent of the defendant generally, or acted as their agent in this particular case. There is no doubt that McDonald acted for them in getting Hide’s seed, and turned the seed over to the defendant. There is' evidence that defendant authorized McDonald to make a special agreement with Hide, with reference to the exchange of seed for meal. Hide acted with good faith, and had every reason, under the evidence in the case, to think he was dealing with the defendant, and not McDonald alone. The evidence was such that the Court could not have disregarded it, and directed a verdict for the defendant as asked for. There was evidence that the defendant had permitted McDonald to appear as its agent for this particular trade with the plaintiff, and the plaintiff, in good faith, dealt with McDonald on the faith of this appearance, and, agency being a question of fact for the jury, and there being competent evidence on this issue in the case, his Honor committed no error in submitting the case to the jury, and these exceptions are overruled.

*453 2 Exception 3, which imputes error in the Court’s refusal to charge defendant’s fourth request, is overruled. When his Honor eliminated ratification, it was favorable to the defendant. The defendant could have been held either as agent, or that it had ratified what had been done, but plaintiff did not claim ratification. His Honor’s charge fully covered the law applicable to the case, and is free from error in the particulars complained of. This exception is overruled.

Judgment affirmed.

Messrs. Justices Hydrick, Eraser and Gage concur. Mr. Chiee Justice Gary did not sit.

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