
    McInnes v. Rittenhouse & Son.
    In an action to recover the value of a machine made hy the plaintiffs for the defendants, the alleged agent of the defendants testified directly as to the agency that he was authorized hy the defendants to order the machine from the plaintiffs: one of plaintiffs’ witnesses was asked this question, as to declarations of the alleged agent: “Did he, the alleged agent, say for whom the machine was to he made?” The witness answered,under objection: “I cannot remember the exact words, hut my recollection is that the machine was for defendants.” The court charged inferentially that the agency could not be established hy the declarations of the alleged agent. Held that a judgment on a verdict for plaintiffs-, should he affirmed.
    Per Curiam. — An examination of the evidence fails to show that the decía-rations of the agent were admitted to prove his agency. He was examined as a witness and testified directly to the facts. Moreover, the court charged that the, agency could not he established hy the declarations of the agent.
    In the above case, the plaintiffs having offered evidence that the construction of the machine was in accordance with the instructions given them hy the alleged agent, the court refused to charge that, before the plaintiffs could: recover, they must show that the machine was constructed so as to do the work required of it. Held, not to be error.
    Feb. 4, 1889.
    Error, No. 316, Jan. T. 1888, to Montgomery Co., to review a judgment on a verdict in favor of plaintiffs in an action of assumpsit, by C. Rittenhouse & Sons against Hugh Mclnnes, liquidating partner of tbe firm of Dager & Mclnnes, at June T. 1884, No. 64. "Williams, J., absent.
    J. H. Middleton, called for plaintiff, testified as follows:
    “I am a draftsman and a pattern maker and live in Norris-town ; bave been engaged in tbe business for thirty years ; I was in tbe employ of tbe plaintiff firm as a draftsman and pattern maker in tbe summer of 1880; Mr. Hendrickson came there and exhibited to me tbe plans for tbe manufacture of a reel and shaft and gave me an idea of what be wanted; in consequence of that I made a drawing; I cannot remember exactly bow long it took me, but from tbe work I would judge that it would take from ten days to two weeks.
    [“ Q. Did be say for whom it was to be made ?
    “ Objected to by defendant. Objection overruled. Defendant excepts. Bill sealed.
    “ I cannot remember tbe exact words but my recollection is that the machine was for Dager and Mclnnes.] [13] During tbe construction of tbe machine, Mr. Dager was there frequently and urged its completion; I cannot remember exactly but I think be was there a half dozen times anyhow and perhaps oftener; when it was completed I only know that it was taken away; I did not go over to the mill to see it.”
    Cross-examination waived.
    Samuel Wilson, sworn. “ Defendants state that they propose to prove by this and other witnesses, that this reel was so defective in its construction that it would not perform tbe work required of it, that it was incapable of performing tbe work required of it, that great destruction to tbe product produced by this mill, during the time it was in, was made, the defendant thereby suffering loss, and that it was finally thrown 'out of the mill as utterly worthless. Plaintiffs object unless the defendant offers to show that the construction of the machine was different from that ordered by Mr. Hendrickson. The court ruled that unless the defendant offered to show that the defects were such defects as arise by reason of the machine not being constructed in accordance with the instructions given to Rittenhouse by Hendrickson or the firm, it is not testimony.”' [9]
    The following questions were asked Robert Dager:
    “ Q. When this machine was delivered there and put in, just describe what was defective about it; what were its defects; and how did it perform the work that was required of it? Objected to, until it is followed up, first, by proving that those instructions were communicated to Rittenhouse & Sons. Objection sustained, on the fround that it would be useless to go on with the case, unless the efendant first establishes that the instructions to Hendrickson were communicated to Rittenhouse.” [1]
    “Q. How long was this machine in there? Objected to. Mr. Larzelere: The purpose is to show that it did not answer the purpose and was thrown out. Objection sustained, until the defendants show that the instructions given to Hendrickson were communicated to Rittenhouse.” [2]
    
      “ Q. What actual loss was sustained by your firm during the time that this machine was in your mill and in operation ? Objected to; objection sustained.” [8]
    Hugh Mclnnes was asked the following questions:
    “ Q. What kind of a reel had you.looked at when this matter was given to Mr. Hendrickson? Objected to; objection sustained.” [4]
    “ Q. How long was this machine in your mill ? Plaintiffs object. Counsel for defendant states that it is offered to show its defective construction and that it would not do the work for which it was designed, and also for showing the value of the machine so that, if there was a recovery, its real value would be shown. Plaintiffs object to its admission on both grounds. The court ruled that the defendant will be allowed to prove by this witness that the work and labor expended upon this machine was not worth the price for which suit was brought and will admit any testimony showing that the price was excessive for work of this character.” [5]
    “ Q. What was this machine worth ? Plaintiffs object. The court rules, if the object is to show by this witness, that the price charged for the machine was exorbitant, the testimony will be admitted; that it is defective, because the work, material and labor expended upon it are not worth the price asked. Counsel for defendant stated that they propose to ask what this machine was worth as a paper reel in the defendant’s or any other establishment. Plaintiffs object; objection sustained.” [6]
    “ Q. What were the defects of this machine ? Plaintiffs object. Q. I want yon to state what was the defect, what was the result from the defective construction and the friction in that reel, for a reel of that size and power. Plaintiffs object. Objection sustained on the ground that there was no proof that the friction given to this machine was not the friction ordered by Mr. Hendrickson or his firm.” [7]
    “ Q. What actual loss was suffered by your firm arising through the defective construction of this machine? Plaintiffs object. Objection sustained.” [8]
    The further facts appear by the charge of the court below, as follows, by Swartz, J.:
    “ This is an action brought by O. Rittenhouse & Sons against Hugh Mclnnes to recover the sum of $250 for the manufacture of a paper reel. The plaintiffs claim that this reel was constructed under instructions given by the agent of Dager & Mclnnes, or by' the man whom they sent there to have the reel constructed. The defendant says that he is not liable for the construction of this reel, and that he never authorized the plaintiffs to manufacture such a piece of machinery, and never had anything to do with it; that they employed Justus J. Hendrickson and dealt with him alone. Now, I think you will find the facts in this case within a narrow compass; and the first question for you is, was Mr. Hendrickson authorized to order this reel from C. Rittenhouse & Sons at the expense of Dager & Mclnnes ? That is a question of fact that you must ascertain from the evidence. Now, one man has no right to order anything done at the expense of another, unless he can show by evidence his authority so to act, nor can the man, who does the work under these circumstances, justify himself by saying that this man claimed to be the agent of another, because, if he has been deceived by him, and said agent was not authorized to do the work or order the work done, the party who does the work cannot recover against the man who is alleged to have ordered it. Suppose your foreman asks me to do a piece of work for you, and although I may know that the work that I am doing for him is to go to Mr. Hun-sicker, that he is to have the machinery when it is constructed, that will give me no remedy against Mr. Hunsicker unless I can show that your foreman was authorized to order me to charge it to Mr. Hunsicker.
    “ Now you will take the testimony and see whether the evidence is sufficient to warrant you in finding that the work that was done by C. Rittenhouse & Sons was authorized to be done for Dager & Mclnnes, and whether they had authority to charge them with it. You have, on the one hand, the testimony of Mr. Dager, because it is alleged, I believe (you will see if there is any testimony on that point), that Mr. Mclnnes had nothing to do with the contract that was made between Mr. Hendrickson and Dager & Mclnnes, the negotiations being between Mr. Hendrickson and Mr. Dager. Mr. Dager positively swears that he never authorized Rittenhouse & Sons to do this work for Dager & Mclnnes ; that he never authorized Mr. Hendrickson to contract for Dager & Mclnnes with Eittenhouse & Sons, but that the dealings that he had in reference to this reel were entirely with Mr. Hendrickson and with him alone, and that he employed him to get up this reel.
    “ Now, on the other hand, the testimony of Mr. Hendrickson does not entirely accord with this; you have heard his testimony, and I will read such parts as may have an especial bearing on the case, and if there is any other testimony bearing on this point, you will have that also; but that your minds may be refreshed as to what was said by Mr. Hendrickson in relation to the contract he had with Mr. Dager, I will read. He says: £ I have done work and ordered work for Dager & Mclnnes, of which firm Mr. Mclnnes is the liquidating partner; I had authority from Mr. Dager to order this reel; he wanted a set of paper reels and said he was looking at reels in Wilmington, for which they asked, $250; I told them I thought that I could get up a set and save them from $100 to $125, and Mr. Dager gave me authority to order this set; I ordered them of George Eittenhouse; I told Mr. Dager I was going to order them of him and he made no objection to their being ordered at the expense of the firm.’ This is what he says in his testimony in chief, and then again he says: ‘ I think the exact language was I thought I could save them about $100 or $125 ; they may have asked where I would get it made and I may have told him of George Eittenhouse, and they made no objection.’ In re-direct examination, he said: £ There was no contract between myself and Dager & Mclnnes; I ordered on the authority of Mr. Dager, after I had made my proposition to him; there was nothing said about pay when I ordered it and I did not suppose it would be charged to me.’ You will take that testimony, and if you find from that testimony that Mr. Dager authorized Mr. Hendrickson to order this reel of Eittenhouse & Sons at the expense of Dager & Mclnnes, then, Eittenhouse & Sons are entitled to recover in that ease.
    “But suppose you find that there was no authority for O. Eittenhouse & Sons to construct this machine, so far as the instructions from Mr. Hendrickson are concerned, that Mr. Hendrickson had no right to give instructions, still, if you find that Dager and Mclnnes ratified what Mr. Hendrickson had done in relation to this reel, Eittenhouse & Sons could recover for the work done in constructing this reel. Therefore you will take into consideration the testimony of George Eittenhouse, who says that, before the work was completed and while it was going on, Dager came there and asked: £ How are you going to charge this reel V and Mr. Eittenhouse said: £ I am going to charge it to Dager & Mclnnes,’ and that Mr. Dager said: £ That is all right, I wanted to know so that I could settle with Mr. Hendrickson.’ If you find that although Mr. Hendrickson was not authorized to make the contract as he did, but that Mr. Dager afterward ratified it and assumed to pay for the work that had been contracted for, then Dager & Mclnnes are liable for this work and O. Eittenhouse & Sons can recover in this case. But, iu order that you may find that Mr. Dager did ratify what Mr. Hendrickson had done, you must also find that Mr. Dager knew what had been going on there. A man cannot ratify unless he knows what was done. Therefore it will be necessary to find that Mr. Dager knew what Mr. Hendrickson had done in relation to this reel before anything that he said about the charge in the book would be sufficient to ratify this contract that Hendrickson had made with Mr. Eittenhouse. You will take the whole testimony in the case, to ascertain whether Mr. Dager knew what was going on; you have heard the testimony of the number of times he was there. Now, the fact that he was there and looked at this machine, and hurried him on with it, would be little or no proof that Mr. Hendrickson had authority to order the machine, because, if I order a piece of work from a man and he has that work manufactured somewhere else, I may go to that place to see how the work is getting along, and yet that act would not bind me to make payment for the work to the man doing that work. Therefore, the simple fact that he went there may be of little importance except it may be of importance in this respect, that it may have enabled 'Mr. Dager to find out exactly what had been done by Mr. Hendrickson in the contract that was made with Eittenhouse & Sons, because if he knew what had taken place and ratified it as being all right, that would be sufficient for C. Eittenhouse & Sons to recover in this case.
    “ Now, you will take any other testimony in the case and determine from the weight of the evidence, remembering all the time that it is for the plaintiff to make out his case; he must establish that he is entitled to recover on one or the other of these grounds, or both: either that they authorized Mr. Hendrickson to go there and make this contract and bind the firm of Dager & Mclnnes, or that Dager & Mclnnes, or a member of the firm, ratified what had been done by Mr. Hendrickson with C. Eittenhouse & Sons. You will remember the testimony of Mr. Dager, who says he has no recollection of having made any such statement to George Eittenhouse about the chai’ge in the books; you will remember that testimony as against the testimony of George Eittenhouse.”
    The defendant submitted, inter alia, the following points:
    
      “ 4. If the jury find from the weight of the evidence that Mr. Hendrickson, as agent for Dager & Mclnnes, contracted for the reel in question, as their agent, to deliver said reel satisfactorily to Dager & Mclnnes upon said contract, then, before the plaintiffs can recover, they must show that the reel in question was constructed so as to do the work required of it. Ans. Eefused. They would only be required to construct a reel such as had been ordered.” [10]
    “ 5. Before the plaintiffs can recover, assuming that there was an agency to make a contract, they must show that they fulfilled the contract, as they were bound to furnish a machine which was calculated to perform the functions required of it; and if the jury find that the machine was defective and worthless for the purpose for which it was intended, then there was no performance of the plaintiff’s so-called contract, and there can be no recovery. Ans. Refused.” [11]
    “ 6. The plaintiffs, in undertaking to construct this machine, which required skill, implied by their contract that they had such skill to construct the machine so that, upon completion, it would answer the purpose for which it was designed. If they failed so to construct it, they failed in their contract — and there can be no recovery. Ans. Refused. The plaintiffs are only held to such skill as was necessary to build the machine ordered of them.” [12]
    Yerdict and judgment for plaintiff for $357.50.
    
      The assignments of error specified, 1-9 and 13, the rulings on the evidence, quoting the bills of exceptions; and, 10-12, the answers to defendant’s points, quoting them.
    
      N. H. Larzelere, with him M. M. Gibson, for plaintiff in error.
    Hendrickson, if an agent at all, was a special agent, and had no power to bind his principal for this contract. Those dealing with a special agent must make inquiry as to the extent of his authority. Nisley v. Kinter, 1 Pears. 21; Providence Steam Eng. Co. v. Lochiel Iron Co., 2 Pears. 178; Allegheny Valley R. R. v. Steele, 1 Penny. 312; Gass v. Citizens’ B. & L. Asso., 95 Pa. 101; Rafferty v. Haldron, *81 Pa. 438; Martin v. Farnsworth, 49 N. Y. 555; Story on Agency, § 126; Booth v. Pierce, 31 N. Y. 463; Nixon v. Palmer, 8 N. Y. 398; Rossiter v. Rossiter, 8 Wend. 494.
    The question complained of in the fourth assignment of error should have been admitted. The uncontradicted evidence was that Hendrickson said he could get up a reel as good as the Pusey & Jones reel at $100 to $125 less cost. The Pusey & Jones reel had an established reputation. Why was it not competent, then, to show the character of the Pusey & jones reel, in order to show that the plaintiffs’ reel was in no respect like it in power, efficiency or strength ?
    If plaintiffs below sought to build a machine, entirely useless and unfitted for its designated purpose, upon the contract of a man, who, at the time of the alleged contract, was not known by plaintiffs to have any authority to act for and bind the defendant, except what he himself said, they took the risk, not having made inquiry. Denning v. Smith, 3 Johns. Ch. 344; Rossiter v. Rossiter, 8 Wend. 494; Schimmelpennich v. Beyard, 1 Pet. 264; Skinner v. Dayton, 2 Johns. Ch. 225, 526; Paley on Agency, §§200-203.
    Before it can be insisted that the principal has adopted the agent’s acts which were done without authority, it must be shown that the principal was fully apprised of all the facts and circumstances attending the transaction. Heins v. Butler, 3 Ired. Eq. 307; Wharton on Agency, § 127.
    If a man contracts to do a piece of work which requires skill and such skill only as will enable the work, when completed, to answer the end for which it was designed, he is bound to fulfil his contract, and if he fail to do so, he not only cannot recover, but is answerable in damages to tbe other for what he has suffered, either by delay or in consequence of the defective work. Waugh v. Shunk, 20 Pa. 130; Miller v. Phillips, 31 Pa. 218; Reaney v. Cuthbertson, 21 Pa. 507.
    
    The declarations of the agent are not competent to prove his agency. Whiting v. Lake, 91 Pa. 349; Union Refining and Storage Co. v. Bushnell, 88 Pa. 89; Hays & Wick v. Lynn, 7 Watts, 524; Lance v. Deacon, 39 Leg. Int. 178; Plumsted v. Rudebagh, 1 Yeates, 502; Hannay v. Stewart, 6 Watts, 487; Clark v. Baker, 2 Wh. 340; Carson v. Cochran, 9 Phila. 21; Dripps’s Est., 4 Clark, 87; Moore v. Patterson, 28 Pa. 505.
    
      Chas. Hunsicker, for defendants in error.
    The agency was fully proved. The argument of the plaintiff in error is based upon an entirely emmeous conception of the facts, and hence the argument itself fails. The evidence was to the effect that the machine was constructed according to the instructions from defendants’ agent.
    As to the 13th assignment, we gave no declarations of the agent in evidence. We called the agent himself and his evidence is competent to prove his own authority. McDowell v. Simpson, 3 Watts, 129; McGunnagle v. Thorton, 10 S. & R. 251; Miles v. Cook, 1 Gr. 58; Hughes v. Oaks, 59 Pa. 32.
    Feb. 18, 1889.
   Per Curiam,

It is settled law that the authority of an agent cannot be proved by his declarations. It is sufficient to refer to Moore v. Patterson, 28 Pa. 505; Union Refining & Storage Company v. Bushnell, 88 Id. 89; Whiting v. Lake, 91 Id. 349. Hence, the thirteenth assignment of error, if sustained by the record, would reverse this case. An examination of the evidence fails to show that the declarations of Mr. Hendrickson were admitted to prove his agency. He was examined as a witness and testified directly to the facts. Moreover, the court charged the jury that the agency could not be established by the declarations of the agent. The jury found that Hendrickson was the agent of the defendant below, and that the plaintiffs made the reel in accordance with the instructions they received from him. If it was so constructed, it is not material whether it did its work properly or not. The plaintiff would not be responsible for the sufficiency of the machine. ' It was enough for them to show that they made it in compliance with their instructions. It follows that the court below committed no error in rejecting the offer to show that the reel would not do the work for which it was designed, and that the defendant had suffered loss by reason thereof.

Judgment affirmed.  