# Cannel Coal Co. v. Luna

> Court of Appeals of Texas · January 17, 1912 · 144 S.W. 721

URL: https://www.frixlaw.com/law-library/cases/9831856

## Case

- **Full name:** Cannel Coal Co. v. Luna. [Fn&8224]
- **Court:** Court of Appeals of Texas
- **Decided:** January 17, 1912
- **Citations:** 144 S.W. 721; 1912 Tex. App. LEXIS 966
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Fly
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9831856

## Opinion text

On Motion for Rehearing.
This court thoroughly considered all of the testimony of Silliman and arrived at the conclusion that it did have strong probative force in showing that he was not the agent of appellant when the service was had upon him. We did not conclude, as did appellee, that, because Silliman had the exclusive right to sell the coal of appellant in San Antonio, he was the agent of appellant; but we considered that fact, as it should be considered, with the other testimony, and concluded that the facts fail to show agency. This court cannot consider matters that do not appear in the record, even such a fact, as stated in the motion, that when Silliman was asked if he ever was agent for appellant he “hesitated for quite a perceptible intér-val of time,” and that “his hesitation was so perceptible as to attract attention.” The record shows that he swore positively and unhesitatingly that he was not then, and had not been, the agent of appellant.
This court stated that Biggio was auditor of the company because he swore that he was; but, if he was bookkeeper or secretary, that did not give any greater authority to his statements. This court concluded that the conversation was held with Biggio by an attorney for appellee in order to obtain testimony on which to base a suit in Bexar county from the following evidence of the attorney: “I wanted to get the facts as to his agency. I wanted to know if the Oannel Coal Company had an agent here. That was the purpose of my telephoning. Yes, the plaintiff was injured in Webb county. He lived there at the time, and he lives there now. The Cannel Coal Company has its general office in Webb county, and there is a district court in Webb county. I brought the suit in the district court of Bexar county, because I thought we could get bigger damages here.” The witness stated that the conversation with Biggio was held “just before the filing the petition in this case.” No other reasonable inference can be drawn than that the conversation' was had to obtain testimony on which to base a suit in Bexar county, and yet we are told in the motion for rehearing that “there is nothing in the record that lends color to the statement.”
The record does not show, as stated in the motion, that “Biggio, the custodian of the records, was asked not to bring the records with him to >San Antonio.” Nothing of the kind can be found in the statement of facts, although so stated in the motion.
This court has not “on another occasion, and in another case, entertained a different view as to the probative force of an admission made by the agents of a corporation on the subject of who were other agents of the same corporation,” and the case of Laredo Electric Light Co. v. U. S. Lighting Co., 26 S. W. 310 , is not authority for such statement. In that case it was held that statements of the manager of a corporation as to who was the former manager would be evidence. We endeavored to show the distinction, in our opinion in this case, between the declarations of an auditor, secretary, or director, and that of the manager or board of directors that has charge of the affairs of a corporation and can bind it, and it is useless to further discuss it.
It is insisted that this court erred in stating that Biggio did not testify on the issues presented by the plea of privilege, but the record' shows that certain witnesses were placed on the stand by appellant, and then the record states, “Defendant rests on its plea of privilege,” and then appellee introduced his testimony on the issue, and the record recites, “Here the plaintiff rests on the issue of the defendant’s plea of privilege.” Among the witnesses for and against the plea of privilege the name of Biggio does not appear, and the record shows that he did not testify until appellee, Dr. Taylor, and Jose Angel Barron had testified as to facts bearing on the negligence of appellant and the extent of the injuries inflicted on appellee, and after appellee had rested on his main case. This court merely followed and was guided by the record.
We endeavored to make clear in our former opinion the elementary doctrine that agency cannot be proved by the acts and declarations of a party claiming to be an agent; but in spite of that fact it is stated in the motion: “As corroboration of Silliman’s testimony that he was the agent, we think the sales slips issued by Silliman was a circumstance properly looked to ; also the large sign he had over his place of business was a proper circumstance corroborative of the fact that he was the agent of appellant in San Antonio.” It may be stated that Silliman did not testify that he was the agent of appellant, but strenuously denied it; but, if he had stated he was such agent, the “sales slips” and “large sign” prepared by him. would add nothing to his testimony, because his acts stand in the same category as his declarations and do not prove agency.. The principal must be connected with the agent either by appointment of him as' agent, or by ratification of his acts. “But the agency must first be proved, as derived from express delegation or by facts admissible and sufficient for that purpose, before the declarations of the agent, respecting the subject-matter, can affect the principal.” Lath- *725 am v. Pledger, 11 Tex. 439 ; Wright v. Doherty, 50 Tex. 34 ; Coleman v. Colgate, 69 Tex. 88 , 6 S. W. 553 ; Noel v. Denman, 76 Tex. 306 , 13 S. W. 318 ; Tompkins v. Peter, 84 Tex. 627 , 19 S. W. 860 ; Mills v. Berla, 23 S. W. 910 . The rule is thus clearly stated by Meehem, in his work on Agency (section 100): “The authority of an agent where the question of its existence is directly involved can only be established by tracing it to its source in some word or act of the alleged principal. The agent certainly cannot confer authority upon himself. Evidence of his own statements or admissions, therefore, is not admissible against his principal for the purpose of establishing, enlarging, or renewing his authority; nor can his authority be established by showing that he acted as agent or that he claimed to have the powers which he assumed to exercise.”
If Silliman had sworn, as is persistently claimed by appellee, that he was the agent of appellant, the testimony would be competent to prove agency; but he did not so testify, but asserted time and again that he had never been the agent of appellant,' Having the sole right to sell coal in San Antonio, that he had bought from appellant, did not constitute him an agent. The testimony may have shown the existence of a monopoly, but not of an agency.
What has been said as to the declarations and acts of Silliman applies with equal force to the declarations of Biggio, the auditor, secretary, bookkeeper, or director of the corporation. The case of Railway v. Varnedoe, 81 Ga. 175 , 7 S. E. 129 , is similar to this, and in that ease the Supreme Court of Georgia said: “We do not think that the plaintiff should have been permitted to testify as to what Pendleton said to him concerning Peck’s agency and authority, etc. It is true, it is claimed that Pendleton was a director of the company at that time; but we do not think the declarations of the director as to whether a certain person is the agent of the company or not are sufficient to bind the company. * * * One man cannot make another man or a corporation his principal by saying so, nor has every em-ployé of a corporation authority to bind it.” No authority to the contrary has been, or can be, produced.
The motion for rehearing is overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9831856. Public record. Not legal advice.