The plaintiff seeks to enforce against the defendant the terms of a written contract which was not otherwise executed on the latter's behalf than by one who at the time of its execution was known to the plaintiff to be an agent. In thus dealing with this agent the plaintiff was put upon inquiry as to the scope of his authority, and the defendant will not be obligated as principal unless the agent in the execution of the contract was acting within the scope of the authority expressly or impliedly conferred upon him by the defendant, or unless the latter is estopped from denying that the agent was so acting, or there has been a subsequent ratification of the agent's act. CreditCo. v. Howe Machine Co., 54 Conn. 357, 389, 8 A. 472.
The agent's express authority did not extend to the execution of the contract. It is also found that his implied authority did not. The question of the existence of an apparent or implied agency is essentially one of fact.Union Trust Co. v. McKeon, 76 Conn. 508, 514,57 A. 109. As such it is reviewable to the limited extent that other questions of fact are. But a review in the present case discloses no error in the court's conclusion. The only fact from which an inference of authority could be drawn is that Schmidt was at the head of the defendant's business office. Under the circumstances outlined in the finding the court was justified in not regarding it sufficient to establish an apparent agency for the execution of a contract of the character of that in controversy. Union TrustCo. v. McKeon, 76 Conn. 508, 513, 57 A. 109. There being no apparent agency arising from the situation just noticed, there could be no estoppel, since there is no other fact to aid in the creation of it. There had been no prior course of dealing by or through Schmidt to justify a belief upon anybody's part that his authority extended beyond its actual limits. His employment had but just begun, *Page 452 and as far as appear his interview with the plaintiff was his first business act in that employment. The plaintiff chose to deal with him for the simple reason that he found him installed in the office, and he dealt with him without inquiry as to his authority or knowledge of other facts indicative of authority. City Bank v. Thorp, 78 Conn. 211,217, 61 A. 428. There is nothing upon which to found a ratification.
The plaintiff offered evidence in chief tending to show that Schmidt submitted the contract to the two officers of the corporation, who were also its only directors, before it was executed, and that it was approved by them. This the two persons concerned denied. Upon rebuttal a witness was called for the purpose of contradicting one of these directors — the president, one Cochran. This witness was asked concerning a conversation which he testified he had with Cochran within a few days after the contract was entered into, for the purpose of showing, as claimed, that Cochran then informed the witness about it. Counsel for the defendant objected to the inquiry, upon the ground that Cochran's attention had not been called to the claimed conversation, and that the proper course, as outlined in the 22d Conn., had not been pursued; and the inquiry was not permitted.
The case to which counsel thus appealed for the exclusion of the proffered testimony was that of Hedge v. Clapp,22 Conn. 262, wherein the question of the power and duty of a court in dealing with a situation like that before the court in the present case was fully discussed and clearly defined. In that case it was contended that it was reversible error to receive evidence of the declarations of a witness, made out of court, contradictory of his statements sworn to on the trial, without requiring that the attention of the witness should have been first called upon cross-examination to the claimed contradictory declarations. Such is the unbending rule of law in many, if not most, *Page 453 jurisdictions today. 2 Wigm. on Ev. § 1028. This court, however, refused to join in the procession of those who have created, out of the decision of the judges in TheQueen's Case, 2 B. B. 313, any such inflexible principle. But while this is true, it gave no encouragement to a general practice on the part of the courts of admitting such contradictory declarations quite regardless of whether or not the attention of the witness sought to be contradicted had been first directed to them. Much less did that authority hold or suggest that the refusal to hear such contradictory testimony under any and all circumstances would be reversible error. The conclusion of the court was that there was no inflexible rule to govern the conduct of a trial court under the conditions suggested, that the practice sought to be established as an unyielding rule by the plaintiff in error was a safe and conservative one to pursue in many, if not most, cases, and one very proper to be adhered to in such cases, but that it was one from which a court, in the exercise of that discretion with which it is liberally endowed, might well and properly depart, if, with the circumstances before it, it was of the opinion that the ends of fairness and justice would thereby be best subserved. The principles of this leading case have been strictly adhered to in this jurisdiction, and they embody familiar law. McGinnis v. Grant, 42 Conn. 77, 79; Tomlinson v. Derby, 43 id. 562, 565; Bradley v. Gorham, 77 id. 211, 213, 58 A. 698. It is clear, therefore, that the ruling of the court was not one which deprived the plaintiff of any right, and that it was one which lay within the domain of the judicial discretion. That it was made in the exercise of that discretion we must assume, since nothing to indicate the contrary appears. This assumption, however, is by no means a barren one, in view of the fact that the appeal of counsel was to a long-established and familiar principle, and to the doctrine of a particular case expressing that principle, distinctly called to the attention of the court. *Page 454
We have said that error cannot be predicated upon a ruling made in the exercise of this discretion. McGinnis v.Grant, 42 Conn. 77, 79; Tomlinson v. Derby, 43 id. 562, 565. If, however, it be assumed that a case might arise which disclosed such a clear abuse of discretion as to warrant a review, this clearly is not such a case. The record contains no information as to the situation before the court except such as is contained in the bare recital of the ruling already outlined.
Defendant's counsel have undertaken to justify the ruling upon the further ground that the evidence sought to be elicited was not properly rebuttal, but relevant to the plaintiff's case in chief. It would be unfair, as it is unnecessary, to sustain the court's action upon this ground, since it was not made a ground of objection, and is not stated as a reason for the ruling, and the power of the court was no more and no less a discretionary one in this aspect of the situation than in that already discussed.Hathaway v. Hemingway, 20 Conn. 191, 196.
There is no error.
In this opinion the other judges concurred.