#### Kaufman *v.*National Transit Co.

In an action of assumpsit, to recover on a contract for services entered into by the plaintiffs, with an agent for defendant, a foreign corporation, a witness was offered to prove that the alleged agent had engaged him to do certain work which the latter said was to be for the company defendant, that, after he did the work, he was referred to another party who paid him with a check or draft of the company defendant. The evidence was objected to on the ground that the agency could not be proved by the declarations of the agent, and was excluded. Another party was offered as a witness, who testified that he was the agent of the company defendant and another company, that his duties were about the same in both, that the defendant company was not organized until after the date of the transaction with the alleged agent, that he employed the alleged agent, with whom plaintiffs contracted, to procure rights of way, and that the proceeds of the rights of way go to the defendant company. Plaintiff then offered to testify as to the contract with the alleged agent, the subject of the suit, but was rejected. The court directed a verdict for defendant. *Held,*that-the judgment should be affirmed.

March 19, 1889.

Error, No. 339, Jan. T. 1888, to C. P. Lycoming Co., to review a judgment on a verdict for defendant, in an ac*37tion of assumpsit by Joseph Kaufman and E. W. Weaver, against the National Transit Co., at March T. 1887, No. 186. McCollum and Mitchell, JJ., absent.

The declaration, after the common counts, averred a verbal contract made, on Dec. 7, 1881, between one Clark, a duly authorized agent of the defendant, a foreign corporation, and the plaintiffs, whereby the plaintiffs were to render certain services in securing a right of way for the defendant, for which services they were to receive $500. The defendant pleaded non assumpsit, payment, payment with leave and set off.

Plaintiffs proposed to prove as follows, by H. R. Mehrling, at the trial, before Cummin, P. J. :

That William A. Clark came to him to engage him to take the right of way to lay the pipe line for a certain oil company; that Mr. Mehrling asked him to tell him, before he would engage with him, what company he was to labor with; that he said he was to labor for the National Transit Oil Company, the defendant in this case. That, in pursuance of that agreement, he was engaged; with that understanding, he was engaged by William A. Clark, and he went to work and took the right of way for the National Transit Company; and, after his labors were all over, he was referred to John B. Barbour and received a check or draft of the National Transit Company for his pay. This to show the authority of William A. Clark to act for the National Transit Company in the case.

Defendant’s counsel objected:

.1. That, in order to avail the plaintiff in this case, and before they can give any evidence of the declarations of William A. Clark in order to effect the National Transit Company, they must first prove that William A. Clark was an agent of the defendant, and the nature and extent of his agency.

2. That the declarations of William A. Clark, by the proof of his agency, are not evidence to affect the defendant in this case.

3. That the nature of the evidence is not admissible in this case to bind the defendant or make him liable, unless there be proof of the appointment of the agent by the Company, and the nature and extent of his authority to bind the principal.

4. That the offer does not pretend to show that William A. Clark was the agent of the defendant, except by his declarations, and lastly, because it is irregular and incompetent. And, further, that any acts done by the alleged agent are not proof of his authority to act for his principal.

Objections sustained and exception. [1]

John B. Barbour, called for the plaintiffs, testified as follows: “ Q. Where do you reside? A. Philadelphia. Q. What was your business in 1881-2, and 'up to the present time? A. In 1881 I was en■gáged taking up the right of way for the Pipe Line through this country. Q. Was that the only capacity you were working in at that time? A. Yes, sir. Q. What Company was it? A. In 1881 *38and up to 1882 I was engaged by the American Transit Company. Up to about the 1st of February, 1882. Q. For what Company after that? A. National Transit Company. Q. These are one and the same Companies ? A. No, sir. Q. What is the difference ? A. Two separate organizations, as I understand it. Q. In what respect are they separate? A. In that they are two separate organizations. Q. When was this Company — the National Transit Company — defendant in this case, formed ? A. I have no knowledge. Q. What are its duties different from the American Transit Company? A. I don’t know. Q. The object of the National Transit Company was to get a right of way to lay their pipe through Lycoming county? A. .No, sir, I did not work for them through Lycoming county. Q. What was their method of taking those rights of way? A. Senda man out to take them. Q. In whose name? A. There was a good deal done in my name, J. B. Barbour. I told Mr. Clark to take some in his name. Q. Did Clark take the right of way for this same Company ? A. He was employed by me. Q. Had you a written agreement with him? A. No, sir. Q. What was the agreement you had with him? A. No agreement at all, except to pay him a certain salary for his work. Q. Then he did not take the right of way through Lycoming county for himself, did he ? A. Simply taken in his name for convenience at the time. Q. For what convenience — what was the convenience ? A. The only thing, I believe, was that the party was there to sign the duplicates of the agreement, and the name of the party was convenient. Q. Did Clark take the rights of way for the same Company that you represented? A. Took the rights of way for me. Q. Didn’t he make a transfer of it afterwards ? A. To me. Q. Are you sure of it? A. Yes, sir. Q. Don’t you know that he assigned these rights of way to the very Company you represented ? A. Some of them— in the early part of the operation. . . . Q. What other agents did you have employed to get this right of way ? A. I didn’t have any. Q. Did you have John Kahler employed? H. Yes, sir. Q. Did you take the right of way through the Vroman farm? A. Yes, sir. Q. What year was that in? A. I don’t recollect. Q. Was it in 1880? A. Somewhere about that time. Q. Does the National Transit Company own that farm to-day? A. Yes, sir. Q. Has John Kahler had charge of it since then to the present time ? A. No, I think not. I have used Mr. Kahler up there occasionally, because he was in that neighborhood. Q. That was from 1880 to the present time ? A. I am not giving dates. Q. You took that right of way in 1880? A. I don’t know that. Q. If you took it in 1880 you took it for the American Transit Company? A. Yes, sir. Q. If you hold it now, you hold it for the American Transit Company — the right of way through the Vroman farm? A. That right was purchased. Q. You purchased it in the name of individuals ? Yes, sir. Q. In whose name did you have it transferred ? A. That was put in the name of Horace Stone. Q. *39Was he agent of the same Company? A. I don’t know what his business was. I didn’t take the right of way at all. That right of way I think was taken — the title was in Mr. Stone. Q. Was that put in the name of Mr. Stone by your direction — the title to the Vroman'farm? A. I don’t remember that. Q. You have held that farm ever since under your control? A. Yes, sir. - Q. It is now known as the National Transit farm ? A. I don’t know. Q. Don’t you know — who attends to it as your agent? A. We have no agent. *Q.*Don’t John Kahler attend to the business ? A. I sometimes write to him. Q. He made a settlement with Mr. Fiester, your tenant? A. Yes, sir. Q. When was that? A. A couple of years ago. Q. In 1887, was it not? A. No — Fiester was not there in 1887. Q. Have you the same control over these rights of way that were secured that you had when they were first taken ? A. I have as much control as I ever had. They are in my name. *Q.*Where do the proceeds gó ? A. To the National Transit Company. Q. When did you say the National Transit Company came into existence ? A. To my knowledge the existence took place some time in early April, 1882. Q. These rights of way were taken in 1880? A. About that time.”

Cross examination: “ Q. Was not all the business in Lycoming County in 1881 transacted by you for the American Transit Company ? A. Yes sir.”

Re-direct examination: “ Q. H. R. Mehrling was employed by William A. Clark ? A. He was seen by Mr. Clark, I believe, and Mr. Clark reported that he could get Mr. Mehrling, and I told him to engage him for right-of-way work. Q. To get the right-of-way for the American Transit' Company? A. Yes sir. Q. Commonly known as what Company? A. I don’t know. Q. You called it sometimes the Standard Oil Company ? A. No sir. Q. You called it the National Transit Company ? A. No sir. Q. What did you call it? A. I called it the American Transit Company. The National Transit Company came into existence afterwards. Q. All the rights of way that were taken through the different- counties were then taken for the American Transit Company? A. No sir. Q. When were the rights of way taken for the National Transit Company? A. Some time in 1882 — probably about the middle of the yeár. I don’t remember exactly when.”

Plaintiffs’ counsel then proposed to prove by Joseph Kaufman, one of the plaintiffs, that William A. Clark represented himself as the agent of the National Transit Company, and engaged him to look up a brake in the line that they had missed,for this Company; that he represented himself as the agent for the Company ; and that he found the break, so reported to him, and, on the strength of that, they entered into this agreement to pay five hundred dollars for disclosing where the break was.

Defendant’s counsel, objected for all the reasons given in the objection to the evidence of H. R. Mehrling, because it was an at*40tempt to prove the acts and declarations of William A. Clark without proving his agency and the extent of it.

2. Because the plaintiffs had already shown, by the last witness upon the stand, that William A. Clark was not agent for the National Transit Company, in 1881, when it was alleged this contract was made.

Objections sustained and exception. [2]

FI. C. Parsons, called for plaintiffs, testified as follows: “ Q. You are acquainted with both these Companies — the American Transit Company and the National Transit Company ? A. Yes, sir. Q. Were you attorney for the American Transit Company and also for the National Transit Company? A. Yes, sir. Q. Employed by whom ? A. By Mr. Barbour and Mr. Dodd, the General Solicitor. Q. Didn’t Mr. Barbour represent the same under the new Company ? A. I don’t know anything about his duties. Q. Was there a transfer made from the American Transit Company to the National Transit Company ? A. I don’t know. I am, employed here, and I report to him. Q. Didn’t I ask you what the name of this Company was, so that I could sue? A. I don’t know. I recollect you asked whether I would accept service. Q. Before that didn’t I say I was unable to say what the name of this Company was that I should sue, and didn’t you say it was the National Transit Company, and that it was the Company William A. Clark represented? A. I don’t know anything of the kind, Mr. Hower. I told you the Superintendent was Mr. Russell. I told you I would see if I could get service accepted. I don’t know anything more about it. I represented both Companies in Lycoming county, and in Clinton. I am instructed to enter my appearance by authority of the General Solicitor. I knew for years that there have been these two corporations. I really thought I was acting kindly to Mr. Hower.”

[Bill of exceptions sealed for the plaintiffs.] [3]

The' court charged as follows :

“ Gentlemen of the jury: I am of the opinion that the plaintiff has not made out a case here that entitles him to recover; you will therefore render a verdict for the defendant.” [4]

Verdict and judgment for defendant.

*The assignments of error*specified, 1 and 2, the rulings on the evidence, quoting the bills of exceptions ; 3, the refusal of the court to allow plaintiff’s counsel to ask H. C. Parsons,’ while on the stand, whether Clark was acting as agent for the National Transit Company in December, 1881, the offer notappearing in the evidence,but the bill of exception appearing, and being quoted as above; 4, the charge of the court, quoting it ; and, 5, the acting of the court in taking the case from the jury by giving them binding instructions to find for defendant.

*A. D.*Hower, for plaintiff in error.

The first offer was not only to show the agency of William A. Clark by his declarations, but by *41his acts in taking the said right of way for the Company, and that even recognized and ratified by the Company. This should have been admitted. Valentine *v.*Packer, 5 Pa. 333; Woodwell & Co. *v.*Brown & Kirkpatrick, 44 Pa. 121.

The testimony of Barbour was competent to go to the jury. In Howard Express Co. *v.*Wile, 64 Pa. 201, it is ruled that evidence may be legally admissible as tending to prove a fact, which, standing by itself, is. incompetent for the purpose.

Kaufman’s testimony should then have been received. “ Where some evidence of agency has been given, it is competent to give in evidence acts and declarations of the alleged agent, respecting the subject matter of his authority.” Central Pa. Telephone and Supply Co. *v.*Thompson, 112 Pa. 118; Stewartson *v.*Watts, 8 Watts, 392.

When there is any evidence which alone would justify an inference of the disputed fact, it must go to the jury, however strong and persuasive may be the countervailing proof. First Nat. Bank *v.*Wirebach’s Ex’r, 106 Pa. 38; Howard Express Co. *v.*Wile, 64 Pa. 201; Pa. R. R. *v.*Horst, 1 Cent. 95.

In all cases where the authority of an agent, whether general or special, is to be implied from the conduct of the principal, or where the medium of the proof of agency is per testes, the jury are to judge of the credibility of the witnesses, and of the implications drawn from their testimony; it is error for the court to decide the point as a matter of law. London Savings Fund Society *v.*The Hagerstown Savings Bank, 36 Pa. 498.

When a principal puts the agent forward as a general agent, or places him in a position where others are justified in the belief that his powers are general, the restrictions, which may be imposed privately on the agent, will be immaterial, except as between him and the principal, and can have no effect on the rights or remdies of third persons. Grafius *v.*Land Co., 3 Phila. 448; Williams *v.*Getty, 31 Pa. 461.

A just protection to persons dealing with corporations imperatively requires that the act of the agent, within the general scope of the business with which he is intrusted, shall bind the company, although the specific act may be in excess of his private instructions. Adams Express Co. *v.*Schlessinger, 75 Pa. 256. •

As between principal and third parties, the true limit of the agent’s authority to bind the former is the apparent authority with which the agent is vested; but, as between the principal and the agent, the true limit is the express authority or instructions given to the agent Brooke *v.*R. R., 108 Pa. 545; Evans’ Agency, 594, 606; Adams Express Co. *v.*Schlessinger, 75 Pa. 246.

*Henry C. Parsons,*for defendant in error.

An agent’s declarations are not admissible until his agency is proved by other evidence. Moore’s Exr’s *v.*Patterson, 28 Pa. 505; Jordan *v.*Stewart, 23 Pa. *42244; Grim *v.*Bonnell, 78 Pa. 156; Creighton *v.*Boudinot, 14 W. N. C. 556; Owens *v.*Evans, 40 Leg. Int. 26.

March 19, 1889.

Per Curiam,

Judgment affirmed.