Damon v. Hinckley Fibre Co.

121 A. 579, 96 Vt. 528, 1923 Vt. LEXIS 203

• Court: Supreme Court of Vermont
• Decided: June 2, 1923
• Status: Published

Opinion

Powers, J.

This is an action of contract wherein the plaintiff claims a balance due on account and damages for the breach of a contract under which he was to cut and deliver a certain quantity of pulpwood from the defendant’s stumpage site. The contract was in writing and contained a provision, known to the plaintiff, that it was “subject to approval of an executive officer of the Hinckley Fibre Company, at its office in Hinckley, N. Y., and shall not be binding on said company until so approved.” It was made on a blank form furnished by the defendant to A. J. Applebee, its sole resident manager. At its lower right-hand corner was what purported to be an approval as follows:

“Approved April 4, 1921

Kinckley Fibre Company

Per A. J. Applebee, Manager.”

So much of this approval as is here italicised was printed; the rest was in the handwriting of Applebee. That the defendant prevented the plaintiff from carrying out the provisions of this writing was admitted; but it was and is insisted that the instrument was never approved as provided therein, and therefore never became binding upon it. The evidence disclosed that this writing was executed in triplicate. One copy was given to the plaintiff, one kept by Applebee, and the third sent by him to the defendant. The latter retained this copy and never in any way communicated its approval or disapproval to Applebee or the plaintiff. The contract was made, executed, approved, and sent to the defendant as other contracts of the same character had been, and the latter were retained by the defendant without expressing its approval but were treated as in force by the acceptance of the pulpwood delivered under them and payment therefor according to their terms. • It is to be observed that the contract does not provide the manner in which the approval shall be made or how it shall be evidenced. So anything that amounts to an approval, be it oral or written, express or implied, will answer its requirements.

[1] That, on the evidence, Applebee was a general agent of the defendant cannot seriously be denied. Iiis authority to bind the defendant was as much as it appeared to be. It was, prima facie, coextensive with the business entrusted to his care, and is not to be cut down by limitations unknown to a person with whom he dealt. Chase v. Robinson, 86 Vt. 240, 84 Atl. 867.

[2] The provision for an approval of this contract, being known to the plaintiff, was binding upon him, unless waived or complied with. But being inserted in the contract for the defendant’s benefit, it could be waived or modified at its pleasure.

[3] Some slight evidence that Applebee had been authorized to approve this contract is found in the printed word “Manager” on the form furnished by the defendant. Then, too, the defendant had allowed Applebee to so execute and approve contracts of this character and had carried them out without protest, and by this course of conduct had by implication enlarged his authority to that extent — or at least had furnished evidence warranting an inference to that effect. Not only this, but Applebee testified that he had authority to approve such contracts in this way.

On this evidence the jury was well justified in finding that the contract was binding from its date.

Moreover, the defendant’s silence after it received the copy of the contract sent to it, taken with its conduct with regard to the previous contracts referred to, afforded a sufficient basis for the conclusions that this contract had its approval; that it had come to be its method of ratification to retain the contract without comment. And it is significant that no one from the home office, either in person or by deposition, speaks in denial or explanation.

[4] The plaintiff was allowed to testify that at the time he signed the contract, Applebee told him he had authority to approve it. To this the defendant excepted, and now insists that it is not competent to prove agency or its scope by the declarations of the alleged agent. But Applebee had testified that he had such authority, and it is not suggested in the brief that the evidence excepted to was prejudicial to the defendant. In these circumstances, it will be taken that the error was harmless.

[5] After the hearing before us was closed, we received a written communication from the defendant’s counsel to the effect that though their exceptions to the charge were not briefed, they desired to insist upon them. Such procedure is wholly improper and unavailing. Exceptions not briefed are treated as waived, and we do not grant re-hearings to allow new points to be presented.

Judgment affirmed.