W. E. Friedlander & Co. v. James Cornell, 45 Tex. 585

Gould, Associate Justice. This suit was brought by the plaintiff in error on two drafts on James Cornell, defendant in error, payable to them order, dated at Fort Stockton, on June 3 and July 27,1867, respectively, and each signed “E. H. Poteet, agent for Jos. Cornell.” In an amended petition it was alleged that the drafts were drawn by Poteet, as agent for defendant, in payment for goods furnished and advances made to Poteet for the use and benefit of defendant upon Ms letter of credit or order in writing. The order referred to is as follows: “Fort Clark, Texas, February 12, 1869. “ Mr. W. E.

Friedlander, Fort Stockton, Texas. “Dear Sir: My carts left here on the 7th for Stockton. I send Mr. Poteet to act as my agent, and in case he may want any goods or assistance, you will grant it and charge to my account, and oblige, yours, truly, “James Cornell, “Per P. E. R.” There was a plea of non est factum under oath, denying the authority of Poteet to draw the drafts, and the trial was on that issue. The court charged the jury that Cornell’s letter conferred no authority on Poteet to execute the drafts, and that they could consider no other fact or evidence for the purpose of extending that authority.

In pursuance of the same view the comí excluded evidence of admissions or statements by defendant made subsequent to the letter, that Poteet was authorized to draw drafts on Mm for advances made by Friedlander & Co.; and further, that similar drafts drawn by Poteet, in settlement of accounts rendered Mm monthly for advances at Fort Stockton, in 1869, had been accepted and paid by Cornell.

Certainly Cornell’s letter authorized the furnisMng to Poteet, on Cornell’s account, of such goods and advances as he might require in the matter of Ms agency; and it is equally certain that the letter does not authorize Poteet to draw drafts on Cornell. But there is nothing in the letter inconsistent with the adoption of thati'mode of settlement, and if it was in fact adopted with the sanction of Cornell, no reason is perceived why that fact might not be established by evidence of his admissions and by evidence of Ms payment of other and similar drafts.

The letter of credit authorized Poteet to create a debt, which Cornell assumed to pay. Certainly it was competent for the parties to adopt some mode of having Poteet certify that indebtedness. As between the original parties, bis draft amounts to little more than such a certificate. Assuming that the debt was properly created, it was competent for Cornell to give subsequent and valid authority to his agent to draw on him for the amount.

An offer to prove this was not an offer to contradict or deny the letter, hut was simply an offer to prove a parol authority to bind Cornell by the instrument sued on, if given for the consideration alleged.

The authority to draw a bill or execute a note may be, and often is, conferred without any writing, and may he presumed from repeated acts of the agent, adopted and confirmed by the principal, previously to the contract in which the question is raised. (Pars. on Cont., 46-48; Chitty on Bills, 28-31.) The action of the court in this case was such as to withdraw from the jury the real issue made, viz: whether Cornell had in fact authorized, or had so acted as to justify the plaintiffs in the belief that he had authorized, Poteet to execute the instrument sued on.

For the error in the charge and in excluding evidence, the judgment is reversed and the cause remanded. Eeversed-and remanded.