Philadelphia, Wilmington & Baltimore Railroad v. Weaver

Brent, J., delivered the opinion of the Court. This suit is brought by the appellee to recover the value of three firkins of butter, alleged to have been purchased by one Richardson for the use of a boarding house of the railroad company, at Perryville. The sale and delivery of the butter to Richardson is not denied, but the company insists that he had no authority to make the purchase as their agent, and that they cannot therefore be held liable in this action. The evidence offered by the plaintiff tended to establish the agency of Richardson, and if uncontradicted no doubt of the liability of the company could be entertained.

The company however offered testimony tending to show he had no authority to make the purchase in question, and thus a conflict in the evidence arose, and it became the duty of the jury to determine upon its weight. The judgment being against the company, an appeal is taken upon the ground, that there is error in the rulings of the Court below, in granting the instructions asked for by ⁴³³ the plaintiff, and in the refusal to grant the third prayer offered by the defendant. The plaintiff asked two instructions from the Court which were granted, and we cannot perceive any error in cither of them. The' first instruction is based upon the evidence of the plaintiff, which if found to be true by the jury, certainly establishes the authority and agency of Richardson to make the purchase of the butter in question.

If he was, at the time, keeper of the company’s boarding house, and had been in the habit of purchasing supplies for such boarding house, of the same character as claimed in this suit, and the bills for such supplies were from time to time paid by the company, the plaintiff’properly regarded him as an agent pro tanto, and was justified, in the absence of any notice to the contrary, in dealing with him as such. The correctness of the second instruction, we stíppose, would have been conceded by the counsel for the defendant, had the case been argued orally, as the law announced in it cannot bo questioned. If the butter “ was delivered to the defendant at their request or the request of their agent, and consumed or used by the defendant in their boarding house,” there can be no doubt of the plaintiff’s right to recover from the defendant what it was reasonably worth. The theory of the defendant is, that Mills was the sole agent of the company in Perryville, and that he alone, and not Richardson, had the authority to purchase supplies for the company’s boarding house.

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