Buckley v. Silverberg

California Supreme Court Aug 7, 1896 No. S. F. No. 156Published

Before: Haynes

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Holding. The court held that the defendant was liable for the purchase price of cattle under the doctrine of ostensible agency, as the defendant's conduct and communications led the plaintiff to reasonably believe the buyer was acting as the defendant's agent. Furthermore, the defendant ratified the transaction by retaining and slaughtering the cattle after being fully informed of the terms of the sale.

Issues

Whether the evidence supported a finding of ostensible agency between the defendant and the buyer.
Whether the defendant ratified the unauthorized purchase by retaining and consuming the goods after learning of the transaction.
Whether the trial court erred in excluding evidence regarding collateral transactions between the defendant and the buyer.

Disposition. affirmed

Quotations verified verbatim against the opinion

“An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.”

Synopsis

Agency—Sale Negotiated by Ostensible Agent — Action for Price— Liability of Principal.—A principal is liable to an action for the price of cattle the sale of which was negotiated by an ostensible agent; and his agency is ostensible, when the business done by him, so far as open to the observation of third parties, was consistent with the existence of an agency, and where, as to the transaction in question, plaintiff’s agent was justified in believing that he was dealing with him as defendant’s agent.

Id.—Evidence— Cross-examination—Collateral Matter. —Where collateral matter is brought out on cross-examination of a witness, the party cross-examining cannot afterward rebut the evidence so called out.

Id.—Collateral Correspondence—Harmless Ruling. — The exclusion of collateral correspondence offered to show the relations between the defendant and the one claimed to be his agent, is harmless, where it is merely a repetition of the oral testimony on that point.

Id.—Ratification of Acts of Alleged Agent — Retaining Benefits— Instruction.—An instruction as to the ratification by the defendant of the acts of an alleged agent by retaining the benefits of the transaction, is proper where there is evidence to show a promise of defendant to pay a draft for the price of cattle sold after having received them, and after knowledge that the seller claimed that the person who negotiated the sale was the agent of the defendant, and where it appears that defendant thereafter slaughtered the cattle.

Instructions—Applicability to Evidence.—Either party has the right to have an instruction given to the jury based upon his own theory of the case, if there is any evidence to support it.

Haynes, C. This action was brought to recover from the defendant the sum of one thousand and thirty-two [675]dollars, the price of certain calves and beef cattle sold by plaintiff to defendant. A jury trial was had, and plaintiff obtained a verdict and judgment for said sum, with interest from March 5, 1894, and from said judgment and from an order denying a new trial the defendant appeals.

Defendant is a wholesale butcher doing business in San Francisco, and plaintiff also resides in said city, but owns a ranch at Goshen, in Tulare county, and had cattle thereon. Con O’Neill was plaintiff’s manager and agent at the ranch, which is distant from the city about two hundred and forty miles.

On' February 28, 1894, L. D. Whitt, whom plaintiff alleges was the agent of defendant, called at the ranch and proposed to buy a lot of thirty-six calves. O’Neill asked ten dollars per head for them. Whitt said: “I cannot pay that much, but I will go down and telegraph to Mr. Silverberg and see what he can pay for them.” He thereupon sent to Silverberg the following telegram: “Can give you car calves, average two hundred and thirty, ten dollars. Wire me. L. D. Whitt”; and received the following reply: “You can pay only nine dollars. They must be fat. S. Silverberg.” Whitt then offered nine dollars per head for the calves, and O’Neill accepted the offer.

The next day Whitt looked at some steers, for which O’Neill wanted five and one-half cents per pound. Whitt again telegraphed Silverberg as follows: “March 1,1894. Will ship car calves to-night. What can I pay for car fat steers? Will average five hundred and fifty. Answer here at once.” Under same date Silverberg replied: “Market low; cattle must be prime and fat to pay five cents. If not fat do not buy.”

Mr. O’Neill testified that he saw the first telegram and the reply, and as to the second Whitt told him that -he got a message that he could only pay five cents for good beef, and after looking at the cattle a second time he said he would give twenty-nine dollars and fifty cents per head for the steers, and this offer was accepted, and [676]Whitt gave him a draft on the defendant for one thousand and thirty-two dollars, the full amount of both purchases. O’Neill further testified that in making these sales he acted as agent for the plaintiff, and that Whitt said “ he was buying the cattle for Mr. Silver-berg,” the defendant. Mr. Whitt notified the defendant by telegram on March 2d of the shipment of both lots, and they arrived on the 3d and were received by the defendant, who saw them as they were being driven to his stockyards.

Buckley v. Silverberg

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