(232 S.W.) sions out of the sale of his land; that Glenn | he had the right to provide against putting replied that "Mr. Christian has not got anything in the world to do with it; it is my deal; my car is broke down, and I hired Mr. Christian to bring me down here"; that on this assurance he proceeded with the negotiations. Christian testified that he afterwards discussed the trade with Dunavent, though this is denied by Dunavent, who testified that Christian never said anything to him about the trade at all. The question is: Should the court have instructed the jury, under these circumstances, "that if the witness Glenn was acting as agent of plaintiff when defendant listed his land with said witness, then the listing would inure to the benefit of the plaintiff, and would be a listing with him." It was essential to a recovery by the plaintiff that he allege and prove a contract between him and the defendant. If Dunavent's testimony is true, did Christian have a contract with the defendant, as the undisclosed principal, through the listing with Glenn? I take it that the relation between the owner and the broker involves an element of personal confidence and trust (9 C. J. p. 519), and that at least so long as the contract remains executory an undisclosed principal broker could not insist on performance of a contract made with his agent in the name of the agent, and without knowledge on the owner's part of the agency (Mechem on Agency [2d. Ed.] § 2067). But the author asserts in this connection that if the agent, in whose name the contract was made, and in whom the other contracting party placed the confidence and trust, himself performs the services, then "no objection could be made against permitting the real principal to require the other party to render performance to him," provided the contract does not expressly exclude any other principal. And it is shown, in a succeeding paragraph of the same work (section 2070), that the "principal cannot sue where the terms of the contract exclude him or where the contract is solely with the agent personally." This general proposition last stated is sustained by the authorities cited, among which are Winchester v. Howard, 97 Mass. 303, 93 Am. Dec. 93; Boston Ice Co. v. Potter, 123 Mass. 28, 25 Am. Rep. 9; Cowan v. Curran, 216 Ill., 598, 75 N. E. 322. I think the testimony of the defendant, Dunavent, if true, brings the case within this rule. He had withdrawn the enlistment from Christian; he listed it with Glenn personally, and before performance expressly informed the said Glenn that he did not want Christian to have anything to do with it, and was assured that Christian did not have a "thing on earth to do with it." This is equiv. alent to an agreement of express exclusion. Whatever defendant's motive may have been, Christian in a position to meddle in his affairs, and to refuse to have any contractual relations with him. It does not appear that the negotiations were conducted wholly by Glenn on his own judgment. Christian, while not present at the conference between the purchaser, the defendant, and Glenn, was in position to be in communication with Glenn and the purchaser during the conduct of such negotiations; and while Glenn may have been doing the acting on the stage, the defendant had the right to stipulate against having Christian as a director behind the scenes. If the facts testified to by Dunavent are true, it ought not to be held that the contract with Glenn was Christian's contract. The requested charge was in effect a peremptory charge against the defendant as to such matter, on which he at least had the right, in my opinion, to go to the jury, and it would have been error for the court to have given it. As to the question of pleading, if the plaintiff under general allegation of the making of a contract between plaintiff and defendant, could introduce evidence to show that he was the undisclosed principal in a personal contract made between a third party and the defendant, I think the defendant, under a general denial, would be permitted to show all facts as to such contract as tended to show that it was not really a contract between the plaintiff and the defendant. FEDERAL SUPPLY CO. v. WICHITA SALES (Court of Civil Appeals of Texas. Amarillo. Principal and agent 103(13)-Authority 2. Principal and agent 103 (13)-Purchaser of truck could rely on representation of agent as to approval of authority to exchange. Purchaser of a motortruck was entitled to rely upon representation of salesman that his principal, whom he telephoned, had given its approval of an exchange, instead of a cash sale, and principal was estopped to deny that the salesman had authority to make the exchange, it being the custom to permit salesmen of motortrucks to make exchanges. Appeal from District Court, Wichita County; J. W. Akin, Special Judge. Suit by the Wichita Sales & Supply Company against the Federal Supply Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Fischer & Fischer, of Wichita Falls, for appellant. F. S. Jones, of Houston, and John M. Martin, of Wichita Falls (Bonner, Bonner & Sanford, of Wichita Falls, on the brief), for appellee. HUFF, C. J. The appellee, Wichita Sales & Supply Company, sued appellant, Federal Supply Company, for a certain traffic truck of the alleged value of $1,670, alleging in effect that one O. E. Lee had stolen the same from the plaintiff and sold it to the defendant. A writ of sequestration was sued out and levied on the truck, which defendant replevied. The defendant answered that it had purchased the truck from Lee, who was the duly appointed and authorized agent of plaintiff, to sell, and that defendant paid Lee $470 cash, and one Maxwell truck of the value of $1,200, for the traffic truck. It was pleaded also: That Lee did not steal the truck, but it was in lawful possession as such agent, and authorized to take trucks into the surrounding country, demonstrate the same, and sell for cash, or to barter the same for used trucks and part cash. "That it had been and is the custom of plaintiff and other agencies selling trucks and automobiles by their agents traveling over the country demonstrating, selling, and exchanging the same in the manner stated above. That plaintiff knew that it was the custom and usage to dispose of their automobiles and trucks in this way, and, knowing this, intrusted the truck sued for herein to its agent, O. E. Lee, knowing the said Lee would sell or barter the same to innocent persons, who would have the right to believe that Lee had good authority to sell and deliver said trucks by reason of the custom and usage above mentioned." That plaintiff also armed Lee with sale orders, which it used, and with the same order used by their selling agency of that class of trucks. That by reason of the above plaintiff is estopped from denying the agency of Lee or apparent authority to barter and sell said truck. The case is here without a statement of facts upon the finding of the trial court. The court finds: "About September 1, 1919, plaintiff employed one O. E. Lee as their agent, to take trucks out into the country in the vicinity of Wichita Falls, Texas, and demonstrate said trucks, and take orders for the sale of same for cash or to exchange same for other property, but such exchange to be subject to the approval of the plaintiff. That it was the plaintiff's custom to have these agencies arrange for exchange of new trucks for used trucks and part cash, but these agencies were not authorized to consummate the transaction until some officer of the company had approved the same. That said Lee, as agent of plaintiff, left plaintiff's place of business at Wichita Falls, Texas, about September 4, 1919, with the truck sued for in his possession, and that plaintiff provided Lee with the customer's deposit receipt of the company, one of which receipts Lee used in consummating this deal." The instrument referred to is in the nature of an order for and a receipt acknowledging the payment of $1,670, as payment in full for the truck. This was signed by Lee as salesman, and by appellant company. Appellant company's place of business was at Electra, about 26 miles from Wichita Falls. Lee represented himself as the agent of plaintiff, and exhibited the customer's deposit receipt. The appellant offered him $470 cash and a Maxwell truck, which was practically new, and reasonably worth $1,200, for the truck in question. Lee said he would phone his employer and let appellant know later. That on the 10th of September Lee returned and stated he had phoned his principal and was authorized to make the exchange. The exchange was then made upon the above terms. Lee turned over the truck and signed the order receipt, which the defendant, appellant here, understood to be a bill of sale to said truck. Lee absconded with the money and the Maxwell truck, and has not been heard of since. The court found that the receipt form given by Lee was used by the factory and all salesmen of the Traffic Motor Truck Corporation; that the defendant had no knowledge whatever of a fraud being perpetrated by Lee, the agent of plaintiff, and believed he had authority to make the exchange and receive the money. Appellant's brief violates the rules of briefing. The assignments are grouped, one following the other, but we think these relate all to one subject; that is, that the judgment rendered is not supported by the facts found by the court, and that the court erred in his conclusions of law as applied to the facts found by the court. That he erred in not sustaining appellant's motion for a verdict (judgment). These matters all relate to the same subject, and may be considered towhen followed by appropriate propositions gether. The assignments are general, but we believe sufficiently designate the grounds upon which the court erred in rendering the judgment. The statement under the proposition is not designated by a heading, and it is also followed by an argument and authorities without heading. If the judgment of the court is fundamentally wrong, we believe the brief would be sufficient to point it out. We have, therefore, concluded to consider the brief. Appellant presents the propositions: (1) That Lee had apparent authority to barter the truck for another truck and for cash; (2) that appellee, by giving possession of the truck, and providing him with the uniform contract order, is estopped from denying the authority of Lee. [1, 2] A general authority to sell does not give the authority to barter, but in this case the court finds as a fact that Lee had the authority to exchange, but qualifies this with the finding that such exchange was to be (232 S.W.) made upon approval of the principal. His | the indices of authority to make the exchange finding is that appellant's knowledge of ap- and to represent it in the transaction, the proval was obtained through the agent Lee, loss ought to fall upon the appellee. 21 C. and that he afterwards notified appellant J. Estoppel, §§ 176, 177; Schleicher v. Armthat appellees had approved the exchange. strong, 32 S. W. 327. The case of Holmes He further finds it was the custom of the v. Tyner, 179 S. W.. 887, is distinguished appellee to authorize the exchange for the from this case in many respects. There was used cars. Certainly, under these findings, no custom alleged or proved in that case. Lee was acting within the apparent scope of The facts in that case we did not think his authority. While it is a general rule also brought it within the rule of estoppel. The that a purchaser cannot acquire a better apparent authority only included the general title to the things sold than the seller had, power to sell, and not to barter. In that yet, where an agent with authority to sell case the power to exchange was only at the conveys the thing, he does not pass the title home office of the company. Under the findas in himself, but his principal's title. In ings of fact we believe the court should have this case it is found by the court the agent rendered judgment for appellant. had the authority to sell upon the approval of the principal, and that its agents custom-fore be reversed and rendered. arily exchanged trucks for secondhand cars. The appellant dealt in view of this authority and custom. The agent, it is true, perpetrated a fraud in pretending to have the approval of the appellee to the exchange, but this was not known by the appellant at the time of the exchange. It would seem, as far as was known to the appellant, the agent was acting within the apparent scope of his authority. He could make the exchange under his authority, and it was customary for appellees to permit agents in that character of agency to make such exchange. The agent while in the apparent scope of his duty purported to have obtained the approval of his principal. 1 Mechem on Agency, § 716; 2 C. J., Agency, §§ 211-214; Case v. Jennings, 17 Tex. 674, 675; Hill v. Moore, 62 Tex. 610. It would seem where a principal has, by his voluntary act, placed an agent in such situation that a person of ordinary prudence, conversant with business usages, is justified in presuming the agent has authority to perform the particular act, and so deals with the agent, the principal is estopped as against the third person from denying the agent's authority. Bush Grocery Co. v. Conely, 61 Fla. 131, 55 South. 867. We think under the court's finding, estoppel should apply. It was pleaded, and the acts of the principal clothed the agent with authority to exchange the truck and furnish him with the customer's receipt, and, while acting within the apparent scope of his authority, phoned for approval and claimed to have it. This may have been untrue; but the court finds the appellant did not know of the fraud, and as a prudent man we see no reason why, under the circumstances, the appellant would not be entitled to rely upon the representations of the salesman in that particular. If it had been any other representation in the trade, it would have bound the principal. It seems to us it should bind appellee in this case, even though it was false; as appellee enabled the agent to occasion the loss by putting him in possession of The judgment of the trial court will there PAYNE, Agent, et al. v. TISDALE. (No. 2430.) (Court of Civil Appeals of Texas. Texarkana. May 26, 1921.) 1. Assault and battery 38-Damages cannot be recovered for insulting words used at the time of the assault. Where defendant's employee used insulting words and epithets to plaintiff at the time when plaintiff was on the premises of defendant to sault did not cause any fright, or physical insend a telegram, and it appeared that the assend a telegram, and it appeared that the asjury, no recovery can be had for the humiliation resulting from the insulting words. 2. Railroads 281 (1)-Railroad not responsible for station agent's assault on sender of telegram. Where plaintiff went to defendant's railroad station for the purpose of sending a telegraphic message, the station agent being the operator, and an altercation and assault resulted when the demand of the agent that plaintiff dismiss an action which as attorney he had brought against the railroad company was refused, defendant was not responsible, as such demand was not within the scope of the agent's employment. Appeal from District Court, Red River County; Ben H. Denton, Judge. Action by A. C. Tisdale against John BarFrom a ton Payne, Agent, and another. judgment for plaintiff, defendants appeal. Reversed and remanded. Head, Dillard, Smith, Maxey & Head, of Sherman, and A. S. Dodd, of Clarksville, for appellants. Keeney & Dalby, of Texarkana, for appellee. HODGES, J. This appeal is from a judgment for damages in favor of the appellee, Tisdale, against John Barton Payne, govern For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "Do you find by a preponderance of the evidence that the defendant, J. A. Robinson, assaulted or abused the plaintiff, A. C. Tisdale, as set out in paragraph 3 of the plaintiff's petition?" This question was followed by the statutory definition of an assault. To this the jury answered, "Yes." In another paragraph the court submitted the issue of damages, and instructed the jury that in assessing damages they might take into consideration any mental suffering or humiliation which was caused to the plaintiff by any "assault or abuse, if there was any." Under other provisions of the charge the jury was authorized to deter within the scope of his authority either as a telegraph agent or the railway agent. The finding was such that the telegraph company was eliminated from the suit, and a joint judgment for the sum of $300 was rendered against Robinson and the Director General. Both Robinson and the federal agent have appealed. ment agent in charge of litigation against railroads, and J. A. Robinson, who was a local agent of the Texas & Pacific Railway Company. In his amended original petition the appellee alleged that in November, 1920, he went to the railway depot at Detroit, in Red River county, for the purpose of sending a telegraphic message; that Robinson was the agent of the telegraph company and of the railroad company at that place. After delivering the message to Robinson the latter, acting for himself and as the agent of the telegraph company and also of the Director General, demanded of plaintiff to know if he was going to withdraw a suit which the plaintiff had theretofore filed against the Di-mine whether or not Robinson was acting rector General; and without any just cause or excuse Robinson wrongfully and maliciously rushed upon him with his fist drawn, cursed and abused the plaintiff in the presence of others. It was further alleged that Robinson followed plaintiff from the premises, cursing, abusing, and threatening to inflict serious bodily injuries upon him, in the presence of a number of other people. He [1] The first group of assigned errors comaverred that as a result plaintiff was fright- plain of the action of the court in authorizened, greatly humiliated, insulted, and dis- ing and rendering judgment for damages retressed, and has suffered great mental pain sulting from the humiliation and mental anand anguish. No battery was alleged, or guish caused by the abusive language emphysical injury claimed. The plaintiff testi-ployed by Robinson on that occasion. The fied, in substance, that he visited the depot at the time mentioned for the purpose of sending a telegraphic message; that while on the premises Robinson, the agent of the telegraph company and of the railway company, demanded to know when he, the plaintiff, was going to dismiss a certain lawsuit which the plaintiff as an attorney had filed for another party in an effort to recover damages for the loss of a trunk; that he told Robinson he had no authority to dismiss the suit, and did not intend to do anything. In reply Robinson said, "Yes you are," and came around in front of him, drew his fist back and said, "I have a good notion to knock hell out of you, you God dern little devil." Plaintiff put up his hand and replied, "You can't afford to hit me." Robinson then said, "If you don't quit meddling with me and my business I will slap hell out of you." Plaintiff says he was humiliated and hardly knew what to do; that he was not able to fight, and besides ne was not disposed to fight-was not of the fighting kind. After sending the telegram substantially the same insults were repeated by Robinson. This occurred in the presence of a number of other people. Testimony was offered by the defendants tending to show that no such violent language was used; that while Robinson and the plaintiff did have a controversy regarding a suit which had been filed, no insulting words were used by Robinson, and no effort was made by him to strike the plaintiff, nor any threatening gestures indicating such an intention. contention is that mere abusive language is not sufficient to form the basis of a judgment for actual damages. Under the charge of the court the jury was authorized and did take into consideration abusive language in assessing the damages for which judgment was rendered. We think the objection made should be sustained. It is apparent from the record that the principal grievance of which the appellee complains resulted from the insulting language used by Robinson. We are not called upon to determine the question of liability for the demonstration claimed to be an assault. An illegal assault not amounting to a battery may, under certain conditions, result in physical injuries for which a civil action would lie. But in this instance the appellee does not testify that he experienced any fright or sustained any physical injury. The only mental disturbance of which he complains is humiliation and shame, evidently produced by the insulting language used in the presence of other people. That such sensations cannot be made the basis of a suit for damages is supported by the following cases: Sisler v. Mistrot, 192 S. W. 565, 567; Railway v. Trott, 86 Tex. 412, 25 S. W. 419, 40 Am. St. Rep. 866; Brooker v. Silverthorne, 111 S. C. 553, 99 S. E. 350, 5 A. L. R. 1283: Williams v. Riddle, 145 Ky. 459, 140 S. W. 661, 36 L. R. A. (N. S.) 974, Ann. Cas. 1913B, 1151; Kenworthy v. Brown, 45 Misc. Rep. 292, 92 N. Y. Supp. 34; Republic Iron & Steel Co. v. Self, 192 Ala. 403, 68 South. 628, L. R. A. 1915F, 516, 519; Rankin v. Railway, 58 The case was submitted on special issues. S. C. 532, 36 S. E. 997; Kramer v. RicksThe first question was: meier, 159 Iowa, 48, 139 N. W. 1091, 45 L. R. (232 S.W.) A. (N. S.) 928; Roberts v. Ramsey, 86 Ga. 432, | contract which is not within the specific lan12 S. E. 644; Robertson v. Edelstein, 104 Wis. guage is not void, though the general language 440, 80 N. W. 724; Ritchie v. Stenius, 73 was broad enough to include it. Mich. 563, 41 N. W. 687; Melvin v. Weiant, 36 Ohio St. 184, 38 Am. Rep. 572; Fawsett v. Clark, 48 Md. 494, 30 Am. Rep. 481. [2] We are also of the opinion that there was no legal ground in the evidence for a judgment against the Director General. The appellee did not visit the depot for the purpose of transacting any business with the railway company, but to send a telegraphic message. In the altercation which arose Robinson was not acting in furtherance of any duty he owed to the railroad company. While the latter may have been benefited by a dismissal of the suit which provoked the difficulty, Robinson had not been commissioned to have that suit withdrawn. What he said and did were obviously beyond the scope of his authority. His employer was not therefore bound for the consequences of his unlawful conduct in such an authorized undertaking. The offensive transaction was clearly a private altercation between appellee and Robinson. Grubb v. Railway Co., 153 S. W. 694, and cases cited. We therefore conclude that the judgment should be reversed and here rendered, acquitting the railway company of any liability, and that the judgment against Robinson should be reversed and remanded for the reasons previously stated. Appeal from Dallas County Court; T. A. Works, Judge. Suit by the Adva-Talks Company against Schow Bros., Incorporated, to recover the amount due on a contract. Judgment for plaintiff, and defendant appeals. Affirmed. Etheridge, McCormick & Bromberg, of Dallas, for appellant. Thurman, Nicholson & Saxon, of Dallas, for appellee. BOYCE, J. The Adva-Talks Company sued Schow Bros., to recover an amount alleged to be due on a contract between the said parties, under the terms of which the Adva-Talks Company furnished Schow Bros. the advertising material and matter referred to in the contract. The disposition of the case requires a conclusion by us, as it did by the trial court, as to two questions: First, whether the contract was made in behalf of the Schow Bros. Company by such an agent and under such circumstances as to bind it; second, whether the contract was void as being in violation of the provisions of the anti-trust laws of this state. The trial court held against appellant on both questions, and rendered judgment on the contract for the appellee. The first question presents largely a question of fact as to which we think the evi SCHOW BROS, Inc., v. ADVA-TALKS CO. dence amply sustains the conclusion of the (No. 1795.) (Court of Civil Appeals of Texas. Amarillo. 1. Monopolies 17(1)-Advertising cuts are Act. trial court, and we do not consider it necessary to discuss such question further than to announce our approval of the holding of the trial court on it. The contract sued on was evidenced by a written order executed by Schow Bros., and addressed to the Adva-Talks Company. So much of it as is necessary to be considered in the disposition of the second question suggested is as follows: "Ship to us at once as per list advertising service, consisting of 156 pieces adv., copy, 156 column cuts. We agree to accept this service and pay you net cash, etc. * We to have the exclusive right to use the above advertising service in this city only and all cuts and advertisements to become our property for this purpose. We have no right to use said service or said cuts in any other town and to have no right to permit anybody else to use said sery [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Com-ice or said cuts at any time." modity.] 2. Monopolies 10- General expression of purpose of statute is limited by specific defi nitions thereafter. The general language of Rev. St. 1911, art. 7796, was intended only as an expression of the purpose of the law, and is limited by the specific definitions of the prohibited acts in the subsequent portions of the section, so that a The trial court made the following findings of facts in this connection, which we adopt: "The plaintiff has an office in the Southwestern Life Building, Dallas, Tex., and has a plant in Oak Cliff, an addition to the city of Dallas, where its printing, stereotyping, stockroom, and shipping department is located. That the stere For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |