Opinion
No. 28444.
December 16, 1952.
APPEAL FROM THE CAPE GIRARDEAU COURT OF COMMON PLEAS, CAPE GIRARDEAU COUNTY, J. HENRY CARUTHERS, J.
R. P. Smith, Cape Girardeau, for appellant.
Raymond H. Vogel, Cape Girardeau, for respondent.
This is an action to recover an automobile repair bill. Plaintiff, Goodwin McDowell Motor Company, Inc., a corporation, recovered judgment for $652.20 against St. Clair Automobile Finance Company, a corporation, in the trial court. Defendant has appealed, assigning error in the giving the instructions and in the admission of evidence.
The petition alleged that defendant, by its agent and servant Buddy Dean, requested plaintiff to completely repair a Chrysler automobile which it caused to be brought to plaintiff's garage and in which it had an interest as assignee of the mortgagee; that plaintiff did completely repair the automobile; that the reasonable value of the materials and services furnished was $827.20; that defendant paid plaintiff $165 and one Willie Van paid plaintiff $10, leaving a balance due in the sum of $652.20, for which plaintiff prayed judgment.
Defendant's answer denied that Buddy Dean was authorized to employ plaintiff to repair the automobile; alleged that Willie Van employed plaintiff to repair the automobile for $350; admitted that $175 had been paid on the account; alleged that all payments made thereon were made by Willie Van, and denied that defendant had paid or agreed to pay any sums on the account.
The evidence, considered in the light most favorable to the prevailing party, indicates that Willie Van bought the car from West End Auto Sales Company, which took a note and mortgage for part of the purchase price; that defendant purchased the note and mortgage from the mortgagee; that thereafter Willie Van wrecked and damaged the car; that before the automobile was brought to plaintiff's place of business Buddy Dean, whose duties were to collect delinquent payments on mortgage notes and to repossess mortgaged automobiles for defendant finance company, had a conversation with Lloyd McDowell, president of plaintiff corporation, in which Dean stated that an automobile "they" had financed was wrecked and he wanted McDowell to see if it could be fixed up — see what he thought about it; that "they" would have it towed in; that he had talked to a Mr. Clark about the needed repairs and had received an approximate estimate of $300. The car was brought in by a wrecker owned by the James Wrecker Service. Willie Van did not bring the car into plaintiff's garage to be repaired nor did Willie Van order the making of the repairs. After it was towed in it was immediately apparent to McDowell that the automobile would cost considerably more to repair than Dean had anticipated. No price for the repairs was agreed upon and no estimate made, but Dean told McDowell "We will see that you get your money." The second day after the automobile was towed to plaintiff's shop Dean brought $165 and paid plaintiff that sum on the account. Three or four months later Willie Van appeared and paid $10. After the car was repaired Willie Van drove it away from the garage on an occasion when McDowell was not present. The repairs took four months because repair parts were not immediately available. During that time Dean came into the garage three or four times a week to check up on the car and "different things."
The evidence showed that plaintiff, at the request of Dean, had done automobile repair work for defendant on different occasions; that defendant would be charged for the work and would pay plaintiff by check; that no one other than Buddy Dean had authorized plaintiff to do that work; that during 1949 plaintiff did eight or ten different jobs for defendant; that on each of these occasions Buddy Dean arranged for plaintiff to do the work; that in these instances Dean did not call the office of defendant corporation for authority to get the automobiles fixed; that plaintiff required no signatures on authorizations for repair jobs; that no deposit was required on other jobs done for defendant; that after the automobile in question was repaired and taken out by Willie Van, defendant repossessed the car.
For its first point appellant complains that the court erred in admitting evidence of facts tending to show agency by estoppel for the reason that there was no pleading upon which to base such proof, and further asserts that it was error to give Instruction No. 2, which permitted the jury to impose liability upon defendant through the agency of Buddy Dean if defendant by its own conduct made it appear to a person of ordinary prudence, using due diligence and discretion, that he possessed such authority, even though defendant did not expressly authorize Dean to contract with plaintiff for the repairs.
The cases cited by appellant, and other authorities, subject to certain exceptions not applicable here, hold that it is necessary to plead estoppel specially, and that unless so pleaded evidence in support of estoppel will be excluded. Appellant's argument, however, is based upon the untenable assumption that the evidence of prior transactions tended to show agency by estoppel, and nothing else. It often happens that the same state of facts will support a finding of agency on either of two theories, namely, implied agency, or agency by estoppel. It appears to us that the evidence of prior transactions, fairly interpreted in conjunction with the facts in the instant transaction, coupled with the trial theory disclosed by the instructions, make this a case of implied agency, i. e. agency implied from the acts, conduct and acquiescence of the principal. The habits and course of dealing of the principal in repeatedly permitting the agent to incur liability to plaintiff for the repair of damaged automobiles, and in ratifying and adopting numerous contracts for repair made by the agent with plaintiff, were sufficient for the jury to draw the inference that the finance company intended that Dean have the authority to make this contract for repairs. Haubelt Bros. v. Rea Page Mill Co., 77 Mo.App. 672, loc. cit. 679; Summerville v. Hannibal St. J. R. Co., 62 Mo. 391; 3 C.J.S., Agency §§ 322 f, 324 f, pages 282, 289. The allegation of agency in the petition was sufficient to support the proof of implied agency.
City of Springfield for Use and Benefit of Horton v. Koch, 228 Mo.App. 511, 72 S.W.2d 191, 195; Badger Lumber Co. v. Pugsley, 227 Mo.App. 1203, 61 S.W.2d 425; Lipscomb v. Talbott, 243 Mo. 1, 28, 147 S.W. 798; Marshall v. Hall, Mo.App., 200 S.W. 770.
31 C.J.S., Estoppel, § 153, page 441, see Missouri cases cited in footnote 99; Missouri Digest, Estoppel.
As where there was no opportunity to plead an estoppel, Thimming v. General Talking Pictures Corporation, Mo.App., 85 S.W.2d 208, or where the objection that the estoppel was not pleaded is waived by failure to object to evidence of estoppel, St. Louis Perfection Tire Co. v. McKinney, 212 Mo.App. 355, 245 S.W. 1100, or where the facts are peculiarly in the possession of the person against whom the estoppel is sought to be worked, City of Springfield for Use and Benefit of Horton v. Koch, supra.
Thimming v. General Talking Pictures Corporation, supra, 85 S.W.2d loc. cit. 211; 2 C.J.S., Agency, § 23, page 1015, et seq.
Appellant contends that Instruction No. 2 was erroneous because it authorized a finding of facts constituting an agency by estoppel or by "holding out," but this is not error. A holding out of a person to act as an agent is entirely compatible with the theory of implied agency. Baker v. Aetna Casualty Surety Co., Mo.App., 193 S.W.2d 363.
Appellant further complains that Instruction No. 1 purports to cover the entire case and authorizes a verdict but omits any requirement that the jury find the work done and the charges made therefor were reasonable. The answer to this complaint is that Instruction No. 4 requires the jury upon a finding for plaintiff under Instruction No. 1 to assess plaintiff's damage at the "reasonable value of the goods and services necessarily furnished," etc. Reading the two instructions together, the jury could not have been misled nor could defendant's rights have been prejudiced.
Appellant also complains that Instruction No. 1 permitted the jury to find that Dean was acting within the scope of his authority in employing plaintiff to make these repairs, whereas the record is devoid of evidence to authorize such a finding. While there is no direct evidence of authority there is, as we have seen, a sufficient showing to authorize a finding of implied agency, in which the authority is nonetheless actual merely because it is to be implied. Baker v. Aetna Casualty Surety Co., supra, 193 S.W.2d loc. cit. 367; Thimmig v. General Talking Pictures Corporation, supra, 85 S.W.2d loc. cit. 211; 2 C.J.S., Agency, § 23 g, page 1050.
Appellant further asserts that Instruction No. 3 is argumentative and comments upon the evidence, singling out one fact, namely, the promise of the owner of the car to pay for its repair and telling the jury that this fact does not constitute a defense. The instruction follows:
"You are instructed that if you find the facts to be as stated in Instruction No. 1, you should find for the Plaintiff, even though you may also find that William E. Vann also promised to pay the Plaintiff for the cost of repairs to the Chrysler automobile."
We must deny this contention. One of the defenses raised in the answer was that the contract for repair of the automobile was made between plaintiff and Willie Van and not between plaintiff and defendant. Defendant sought by its evidence to establish that $175 had been paid by Van and nothing had been paid by defendant on the account. It was possible under the evidence for the jury to have believed that there was a contract obligating defendant to pay the bill and also to have found the existence of a separate undertaking on the part of Van to pay the bill. Instruction No. 3 did nothing more than to clear up the question of the legal liability of defendant under such findings, and we do not regard it either as argumentative or as a comment upon the evidence within the meaning of the cases of Cameron v. Small, Mo.App., 175 S.W.2d 177, affirmed Mo.Sup., 182 S.W.2d 565; Stumpf v. Panhandle Eastern Pipeline Co., 354 Mo. 208, 189 S.W.2d 223; Wiener v. Mutual Life Ins. Co. of New York, 352 Mo. 673, 179 S.W.2d 39, cited by appellant.
Finally, appellant argues and cites cases in support of these propositions: (1) that it is error to authorize in an instruction the finding of facts which no evidence tends to establish; (2) that absent proof that the alleged agent purported to bind his principal or that the third party intended to charge the principal, no verdict against the principal can stand. Conceding the validity of these propositions as abstract statements of law, they have no application in this case, for in our opinion there was ample evidence to make it a jury question whether Buddy Dean in requesting that defendant repair the automobile was acting as agent for defendant within the scope of his authority and whether defendant, by its previous conduct, made it appear to plaintiff in the exercise of due diligence that Dean possessed such authority. Likewise there was evidence that Dean undertook to bind defendant when he assured McDowell that "We will see that you get your money." In view of the previous dealings between the parties Dean could have meant no one other than defendant when he used the word "We." That plaintiff intended to charge defendant is sufficiently shown by the fact that the bill was made out to defendant and that McDowell asked both Dean and the general manager of the defendant corporation to pay the bill.
The case was fairly tried, the instructions properly declared the law in the case, the judgment should be affirmed, and the Commissioner so recommends.
The foregoing opinion of HOUSER, C., is adopted as the opinion of the Court.
The judgment of the Cape Girardeau Court of Common Pleas is, accordingly, affirmed.
BENNICK, P. J., and ANDERSON and HOLMAN, JJ., concur.