Jones v. Sherwood Distilling Co.

Walsh, J., delivered the opinion of the Court. The chief cpiestions to be determined in this case are whether an exorbitant sum of money paid by the agent of the appellant to secure the release of two hundred barrels of whiskey, stored in the warehouse of the appellee, was paid voluntarily, or was paid under such circumstances as would render it a compulsory payment, land thus, entitle the appellant to recover the excess over and above the proper warehouse charges, and, further, whether or not this excess can be recovered from the appellee, even if the payment was compulsory. Herbert K. Jones, of Boston, Mass., the appellant, being the owner of two hundred barrels of Sherwood whiskey stored in the warehouse of the Sherwood Distilling 'Company at ’Cockeysville, Baltimore County, Maryland, employed Michael Garvey, of Melrose, Mass., an experienced custom house broker, to arrange for the export of the whiskey to Scotland on board the steamship City of Flint, which vessel was owned by the Oriole Steamship Company and w’as scheduled to leave Baltimore on or about January 1st, 1928. Garvey arrived in Baltimore on December 26th, 1922, and on December 28th, 1922, in company with Mr. Gochnauer, an employee of the steamship company, he went to the distillery at Cockeysville, some ten or fifteen miles from Baltimore, and there delivered the certificates for the whiskey to a Mr. Haim, the general manager and treasurer of the distilling company, 'and asked him for a statement of the charges against the whiskey.

He also advised him that the whiskey was to be loaded on the steamship City of Flint, which was about to leave Baltimore, and asked him when the whiskey could be delivered. Haim promised to furnish a statement of the charges and to advise Garvey later, through the steam ²⁸ ship company, of the date on which the whiskey would be delivered. On December 29th, 1922, Garvey was told, at the steamship company’s office, to call a: certain telephone number, and. upon his doing so was asked to go to apartment 513 of the Hopkins Apartments, where hé met a man who introduced himself as Mr. Aylward. This man had been present in the distilling company’s office when Garvey and Goehnauer were talking to Haim the day before, and, though he took no part in the conversation, he “appeared to be interested therein.” At the Hopkins Apartment he told Garvey that the cost of releasing the whiskey would be $7,500 to $8,000, and that this sum must be obtained at once or the whiskey would not be released.

He also told him that neither a cashier’s check nor a certified check would be accepted, but that the payment must be made in cash, and that Garvey would “have to do business with him.” Garvey thereupon wired his principal for $8,000 cash, and this sum was transferred to him at the Continental Trust Company, Baltimore, on December 30th, 1922. At 10 A. M. on that day Garvey met Aylward by appointment at the comer of Baltimore and Calvert Streets, and paid him $1,000 on account. In the afternoon •of January 2nd, 1923, Aylward and Garvey went to the Hopkins Apartments and after a half hour wait Haim joined them. Haim then told Garvey, “You pay this money over to Aylward and you will get the release of that whiskey tomorrow, but you won’t get it unless you do.” Garvey paid the $7,000 in cash to Aylward, in the presence of Haim, and Haim then produced a statement showing that the •charges against the Whiskey amounted to $3,161.30, which •statement he offered to receipt.

Garvey declined to accept this receipt on the ground that a receipt for such a* sum would be of no use to him in settling with his principal, and Haim assured him that if he had any difficulty with his principal he (Haim) was ia witness to the money being paid. On the following day the whiskey was released by the Sherwood Distilling Company, was loaded on the Steamship City ²⁹ ■of Flint on January 4th, 1923, and on the afternoon of that ■day the boat sailed. Garvey also testified that he thought the $8,000 charge unjust because it was $3,000 more than Jones, the appellant, estimated the charges would be, but he was not sure of its being unjust until he saw the bill, and he also said he protested about the payment. On January 7th, 1924, the appellant entered suit against the appellee and Robert J. Aylward, alleging that the difference between the $8,000 paid and the $3,161.30 actually due was procured from the appellant’s agent by reason of the unlawful demand of the agents and servants of the Sherwood distilling Company, made on its behalf, and their refusal to surrender the appellant’s goods to him unless such excess was paid.

A demurrer was interposed to the declaration, but overruled by the learned court below, and then, after an amendment by which Haim was alleged to be treasurer ■of the Sherwood Distilling Company instead of Aylward, as set out in the original declaration, a demurrer was again filed and again overruled. No mention of the court’s action on these demurrers is made in the briefs, and we will not discuss this action further than to say that in our opinion the amended declaration, which is the only one properly before us, sets out a good cause of action, and there was, therefore, no error in the court’s ruling in this regard. At the conclusion of the plaintiff’s case the court instructed the jury “that the plaintiff ha's, offered no evidence legally sufficient in this case to entitle the plaintiff to recover against the Sherwood Distilling Company, and the verdict must be for the said the Sherwood Distilling Company, one of tho defendants in this case,” and because, of this action, and a ruling on evidence made during the course of the trial, the plaintiff has appealed. It does not appear from either the record or briefs what disposition, if any, was made of this case so far as Aylward is concerned, so that the only party to be considered on this appeal is the Sherwood Distilling Company, which will hereafter be referred to as the appellee. ³⁰ The appellee contends that the evidence was legally insufficient to prove that Haim was its agent, or that he was acting within the scope of his authority so far 'as the transaction here involved is concerned, and it further contends that the payment made by Garvey was made voluntarily and cannot' be recovered.

On the question of agency the testimony shows that on October 3rd, 1922, Irving Haim was elected general manager, treasurer and a director of the Sherwood Distilling-Company, and resigned as treasurer land general manager on January 30th, 1921, that the .1923 report of the company, filed with the State Tax Commission of Maryland on March' 6th, 1923, was signed by Irving Haim as treasurer, that' when the agent of the Oriole' Steamship Company first called the appellee’s office at Cockeysville about the appellant’s whiskey he was advised “he would have to see Mr. Haim, who was the manager.” It further appeared that when Garvey and the steamship company’s agent went to the appellee’s office they transacted their business -with a Mr.. Haim, who was there in the office, that this was the same-Mr. Llaim who directed Garvey to pay- the $7,000 to Ayl~ ward and was present when he did so, that it was also the same Mr. Haim who showed the steamship company’s agent through the appellee’s warehouse and plant while the whiskey was being loaded on the railroad cars on January 3rd, 1923, and finally, it was proved that the day after the money above mentioned had been paid to Aylward the whiskey was released, loaded on railroad cars, and on the following day delivered to the steamship company. There can be no question under the foregoing testimony of the appellant’s right to at least have the- question of Haim’s agency submitted to the jury. In Heise &Bruns v. Goldman, 125 Md. 554, 559 , this Court, speaking through Judge Constable, said: “It is the undoubted rule of law of this state, and practically universal, that it is not for the Court to determine the question of agency vel non, but to determine whether there is any evidence tending to prove the agency, ³¹ •and if there is any such proof, although not full and satisfactory, it is the exclusive province of the jury to judge of its weight. 'Whether there be any evidence or not is a question for the judge; whether it is sufficient evidence is. a question for the jury.’ ” And see also Nat.

Mech. Bank v. Nat. Bank, 36 Md. 5 ; York Co. Bank v. Stein, 24 Md. 447 ; Morrison v. Whiteside, 17 Md. 452 ; Henderson v. Mayhew, 2 Gill. 393. Certainly in this case there is some evidence that between December 26th, 1922, and January 4th, 1923, Haim was the agent •of the appellee.

The question of Aylward’s. agency is not so clear. The .record shows that he was at one time director of the appellee, and preceded Haim as treasurer, but his connection with the appellee corporation in December, .1922, is not shown. However, in the view which we take of the case, Aylward’s agency becomes unimportant if Haim’s is established, and as the testimony regarding the latter is far stronger than that offered to prove the former, we can, for all practical purposes, disregard it. We might say, though, that in our opinion the appellant did not offer sufficient evidence to have the question of Aylward’s agency submitted to the jury.

The next contention of the appellee, namely, that there was not sufficient evidence to show that Haim, in carrying on the transaction involved in this case, was acting within the scope of his authority, is more difficult to dispose of. Similar questions, however, have been before this and other courts on numerous occasions, and through these decisions the following general principles would now seem, to be firmly established. “'Corporations, as well as natural persons, are liable for the wilful tort of an agent acting within the general scope ■of his employment without previous express authority or .subsequent ratification.” “While a corporation is non-personal in its formal legal entity, it represents natural persons and must necessarily perform its duties through natural persons as agents, hence must spring the correlative respon ³² sibility for the acts of its agents within the scope of their employment.” “The question whether the act of the servant complained of was in furtherance of the master’s business, within the scope of the servant’s employment, is generally one of fact to be determined by the jury,” and it is generally held that the burden is “on the defendant to show that the servant was not engaged in the course of his employment.” Hopkins Chem. Co. v. Read Drug and Chem. Co., 124 Md. 210 ; Consolidated Ry.

Co. v. Pierce, 89 Md. 495 ; Evans v. Davidson, 53 Md. 245 ; Hypes v. Southern Railroad Company, 82 S. C. 315, 21 L. R. A. (N. S.), 873 ; Sawyer v. Railroad, 142 N. C. 7 ; Cleveland v. Newsome, 45 Mich. 62 ; Rounds v. D., L. & W. R. R. Co., 64 N. Y. 129 . “Acts of fraud by the agent, committed in the course or scope of his employment, are ‘also binding on the principal, even though the principal did not in fact know of or authorize the commission of the fraudulent acts, and although he derives no benefit from the success of the fraud.” 2 C. J. 849, 850 ; New England Mut. Life. Ins.

Co. v. Swain, 100 Md. 558 ; Andrews v. Clark, 72 Md. 396 ; Tome v. P. B. R. Co., 39 Md. 36 ; Western Maryland R. R. Co. v. Franklin Bank, 60 Md. 36 ; Lamm v. Port Deposit Co., 49 Md. 241 ; Story on Agency (7th ed.), sec. 452. It is also established by the authorities just cited that the question whether or not the fraud complained of was within the scope of the agent’s real or apparent authority is ordinarily for the jury. We think the application of the principles just announced to the facts in the case now 'before us render the question of Haim’s authority a proper one to be submitted to the jury. He was the general manager and treasurer of the distilling company, he was in charge of the company’s office, and the appellant’s agent found him there when he went to see about having the whiskey released.

As general manager he would, in the absence of proof to the contrary, have charge of the appellee’s business, and would be the natural person to consult about securing the whiskey which was stored in ³³ the appellee’s warehouse, and he would also ordinarily be the proper official to fix .and estimate the warehouse charges. As treasurer he would likewise be authorized to receive money due the company, and, while this authority would not necessarily embrace the right to direct the payment of such money to a third person, we think the fact that Garvey was apparently directed to get in touch with Aylward by Haim, and actually paid $7,000 of the money to Aylward in Haim’s presence and at his express direction, warrants submitting to the jury the question whether or not this conduct on, the part of Haim was within the scope of his authority, real or apparent. Of course, the facts before us are not in dispute, and so it might be contended that there is nothing to submit to a jury, but such a contention ignores t,he different inferences which may be deducible from the same facts, and in this ca'se we think there is a difference in the inferences which could reasonably be drawn from, the undisputed facts. “Even where the evidence is not conflicting, the question should be given to the jury if reasonable minds could draw different conclusions therefrom.” 2 C. J. 961, 962, 964. So far as the questions of agency axe concerned, the ease of New England Ins.

Co. v. Swain, supra, is closely analogous to the one we are considering. In that case an insurance agent fraudulently collected an. insurance premium a second time and appropriated it to his own use, and in holding that the insured had a right of action against the insurance company to recover this excess payment, Judge Iioyd, who wrote the opinion, said: “In Tome v. P. B. R. Co., 39 Md. 36 , this Court quoted with, approval from