R. J. Ederer Co. v. Kavanaugh

139 N.W. 1025, 173 Mich. 663, 1913 Mich. LEXIS 583

• Court: Michigan Supreme Court
• Decided: February 19, 1913
• Docket: Docket No. 152
• Status: Published

Opinions

McAlvay, J.

Plaintiff, an Illinois corporation, manufacturer of nets and netting for fishing purposes, brought this suit against defendant, who is engaged in the wholesale fish business, with general offices at Bay City, and at the time this controversy arose was engaged in the same business at Port Huron and Sarnia. The suit was commenced by declaration in assumpsit for certain fish nets and twine alleged to have been sold to defendant by plaintiff in the year 1909. After all the evidence in the case was closed, the court directed a verdict for defendant. Plaintiff has removed the case to this court by writ of error, asking for a reversal of the judgment entered upon such directed verdict.

Evidence was offered in the case tending to prove that defendant, who was doing business under the name of Kavanaugh & Co., of Bay City, and A. W. Selkirk, of Port Huron, entered into a contract in writing as follows:

“Agreement made this 17th day of April, 1909, by A. W. Selkirk, of Port Huron, Mich., party of the first part, and Kavanaugh & Company, of Bay City, Mich., party of the second part, witnesseth: In consideration of the premises party of the first part agrees to take charge of the second party’s fishing business at Port Huron and Sarnia, which is represented largely by existing contracts with individual fishermen, and devote his time and best energies and skill in promoting the same during the fishing season of 1909, as directed from time to time by the second party, and this contract may be extended from year to year if mutually agreeable to the parties hereto. First party further agrees to furnish for use in said business, rent free, properly fitted out for business, his gasoline tug, named W. H. Selkirk, but necessary repairs during the season to be made at the expense of the business. It is agreed also that the business shall pay for gasoline and necessary supplies for operating said fish tug and wages of the men who run the same. First party also furnishes, rent free, for the use of said second party’s business, one-half of his fish house in Port Huron. It is agreed that said first party shall be paid, for his services and the use of his said tug and fish house, a salary equal to one-half of the net profits of the business of said second party, managed by said first party in Port Huron and Sarnia, as aforesaid, after deducting all the expenses incurred in said business. It is agreed that the money necessary for the business shall be furnished by the said second party and shall be kept on deposit, in the name of said second party, in some Port Huron bank, to be hereafter agreed upon, and said first party shall have authority to sign checks on said bank account, as agent of said second party, in the payment for fish and the freight thereon and in payment of wages. All receipts of said business shall first be deposited promptly in said bank account, and all monies paid out shall be paid by checks on said account, and said first party shall have no authority to sign checks for any purpose other than herein enumerated. Adjustment shall be made and wages paid to said first party, if earned, Sept. 1st and Dec. 1st of each year.

[Signed] “ A. W. Selkirk.

“W. P. Kavanaugh.

“Witness: H. C. Hertz.”

The business of defendant at Port Huron was carried on in the same name as that at Bay City and was known as a branch of defendant’s business. Prior to the sale of the goods for which this suit was brought, plaintiff frequently had sold defendant goods. After the contract was entered into between defendant and Selkirk, the latter took charge of the branch business at Port Huron, and operated it during the season of 1909. The goods were ordered by Selkirk in the name of W. P. Kavanaugh & Co., upon the letter heads of defendant, and were shipped by plaintiff in due course of business upon its understanding that Selkirk was acting as the agent of defendant in such transaction. A short time prior to the time these goods were ordered Kavanaugh stated to plaintiff’s general manager that his branch business at Sarnia had been removed to Port Huron, and stated that he was connected with or had Selkirk operating for him. It also appears that the goods were shipped, received, and used upon this tug which was employed in defendant’s business, with other gill nets which defendant had furnished; that bills and statements of account were sent in due course of business to Kavanaugh & Co. at Port Huron; that Kavanaugh came to Port Huron with his bookkeeper from Bay City, who made the entries in defendant’s books of all but one of the items of this account in sundry expense account, in the presence of defendant; that entries were also made on the books of a credit of $118; that of this payment made on this account by Selkirk $18 was cash and $100 a check of W. P. Kavanaugh & Co.; that a trial balance was taken off from these books by the bookkeeper for Kavanaugh; that the bookkeeper was there several times for the purpose of doing necessary work upon these books; that it appears that the balance claimed by plaintiff and testified to by its general manager to be due was $383.46; that the goods were sold in the usual course of business by plaintiff, who dealt with Selkirk in good faith as the agent of defendant who was managing the business at Port Huron.

The instruction by the court of a verdict for defendant was on the ground that no evidence was in the case tending to establish agency or authority upon the part of Selkirk to purchase these goods or that defendant held Selkirk out as his agent to plaintiff. In our opinion the court was in error in instructing a verdict for defendant. All of the testimony in the case referred to, except the written contract, was introduced by plaintiff. Under the rule which prevails where a verdict is instructed, this testimony presented in the case will be considered in the light most favorable to the plaintiff in error. It is not disputed that Selkirk represented the defendant at Port Huron in the conduct and management of his branch business. From the testimony of plaintiff, as above set forth, we, without hesitation, determine that questions of fact were presented which should have been submitted to a jury for consideration. This is the only question to be determined upon this record.

The judgment of the circuit court is reversed, and a new trial ordered.

Steers, C. J., and Moore and Brooke, JJ., concurred with McAlvay, J.