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Opinion

by the Court.

This action was brought by the appellants to recover damages occasioned by the refusal of the appellee to accept from the appellants, and pay for a certain car load of hogs, which they insist the appellee, through one Bragoo as his agent, contracted for and purchased of them. Having* been -defeated in the Circuit Court, the appellants prosecute this appeal

The appellee’s grounds of defense were that Bragoo had not general, but only special and limited power to act for or bind him, and that the alleged contract was net within, the scope of such authority; that he repudiated it promptly after being advised of it; and that the hogs which appellants contracted to sell to Bragoo would not, either in point of numbers, or quality, meet the requirements of the contract according to its terms and conditions as relied upon by the appellee.

"We have carefully examined the testimony. It is directly and sharply conflicting in. respect of these defenses, and its value and weight depend largely upon the -credit that is or ought to be given to the different witnesses who appeared and testified in the presence of the jury. The judgment, therefore, ought not to be disturbed upon the ground that it is manifestly against the weight of the evidence, though it be true that upon some, if not all, of the material (questions, the appellants had preponderance in point of the number of witnesses. The jury seem to have given credence to testimony of the appellee and his witnesses, and we can not say that in this they were wrong. In such cases the instructions should, however, be accurate. The appellants complain of two instructions given for the appellee, and of the refusal of the court to give one asked in their behalf.

In order that these instructions and the criticisms upon them may be understood, it is necessary to state that the appellee testified that he authorized Dragoo to contract for a car load of hogs, to be delivered and Aveighed at Glenarm, a station on the Jacksonville Southeastern B. B., at such time as he (the appellee) might desire, from January 10th to January 20th. The appellants sought to recover upon a, contract Avith Dragoo for a car load of hogs, to be dcliArerecl at Glenarm at such time from January 10th to February 10th, as appellee might prefer, the hogs to be Aveighed at a farm some four miles from Glenarm. Dragoo and another witness, one Iinotts, testified that though appellee did, when empoAvering him to buy liogs, first insist that the hogs must be AAreighed at the railroad station, yet that lie finally consented that if the OAvners of the hogs Avould not agree to so Aveigh them, that Dragoo should contract for them to be Aveighed at the scales nearest Avhere the hogs Avere kept,

The jury seem to have accepted the Aversion of the appellee, and their power and right to do so can not he denied.

The appellants contended that the requirement that the hogs be weighed at the place of shipment, related merely to the manner of transacting the business Avith Avhicli the agent Avas charged, and did not touch or limit the authority of the agent or the scope of his poAver as' an agent.

And as to the extension of time given the appellee in Avliich to demand and have the hogs, the view of the appellants is that the appellee thereby obtained only greater privileges and yet retained every right that a strict compliance by the agent Avith his instructions would have secured to him.

The appellants tendered the hogs on the 11th day of February, and their right of recovery and proof of the amount of the damages seems to rest entirely upon the assumption, that the breach of the contract then occurred, and that the measure of damages was dependent upon the market price of hogs on that date. In this víoav it is apparent that the extension of time for the delivery was a departure from the authority given the agent.

It appears that the hogs driven four miles viere thereby reduced in weight. This loss of weight, under the operation of the contract sought to be enforced, would fall upon the appellee, while under a contract made as he directed as to the place of weighing, the loss would have fallen upon the appellants.

The place for weighing the hogs was therefore one of the essential provisions of the contract, and the instructions to Dragoo relating thereto constituted the limit and scope of his power and authority in that respect. It is not claimed that Dragoo had authority to act generally for the appellee or that he had ever before acted or assumed to act for him, or that he had been “ held out to the world ” as invested with power to represent or in any way bind the appellee. Ilis authority was confined to the particular transaction involved in this suit. He was what is commonly denominated a special agent. His principal was bound only so far as his acts were strictly in accordance with the authority given him (1 Amer. & Eng. Ency. of Daw, page 351 and note 1, page 352; Mechera, on Agency, Sec. 288; Baxter v. Lamont, 60 Ill. 237) and parties assuming to deal with his principal through him must at their peril ascertain the extent of his authority (1 Amer. & Eug. Ency. of Law, page 352; Mechem on Agency, Sec. 289; Davidson v. Porter, 37 Ill. 300) and be prepared to establish it by a preponderance of proof. Mechem on Agency, 276. The court at the instance of the appellee instructed the jury that “if the directions of the principal to his agent are specific to do some particular thing in a particular manner, and the agent disregards such specific instructions and goes beyond his instructions, doing something else in violation thereof, then under' such circumstances, the principal is not bound by any contract so made,” * -x and if Dragoo was a special agent acting under specific instructions, and violated such instructions, the verdict should be for the appellee, unless such acts of Dragoo wrere ratified, etc. Without intending to be understood as approving this instruction abstractly, we hold it correct when applied to the facts of this case. It fails to recognize the distinction which is to be drawn between authority given to an "agent and instructions or directions as to the manner of executing the authority.

But as the “ instructions or directions ” in controversy, limited the authority of the agent, the rule announced by the court to the jury is, we think, the one properly applicable to the facts the jury were called upon to consider.

This being true, the instruction asked by the appellants that the appellee could not repudiate “ a contract * * * because of the agent’s failure to observe unimportant details in the principal’s instructions to him, but would be bound by such conduct of the agent, so long as the same is in substance within the reasonable scope of his authority,” ought to have been, as it was, refused.

It conveys an assumption that the place where the hogs were to be weighed, and time within which the contract should be terminated, were unimportant details, and it was calculated to lead the jury to understand that something less than a strict compliance with the authority given the agent would bind the principal.

We see nothing else in the case to which it could have applied. It ought not have been given. We believe the appellants were, in the judgment of the jury, beaten upon the facts. Ho reason is perceived why we should hold that in this they were manifestly wrong. The judgment must be affirmed.

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