Richey & Herring, of Douglas and Tucson, for appellant.
Wesley E. Polley, of Bisbee, for appellee.
De Concini, Justice. Udall, C. J., and Stanford, Phelps, and La Prade, JJ., concurring.
De Concini, Justice.
[74 Ariz. 72] Appellee, Dan T. Hooks, hereinafter referred to as plaintiff, brought suit against Canyon State Canners, a corporation, appellant herein and defendant below, for breach of an alleged oral contract to sell sweet potatoes to the defendant cannery. A judgment of $ 800 was returned in favor of the plaintiff who had sued for $ 2,400. Defendant appeals to this court from that judgment and from the denial of its motion for a new trial.
Plaintiff at the time this action was commenced was a farmer engaged in growing various vegetable crops such as tomatoes, chili, sweet potatoes and corn in the Sulphur Springs valley near Douglas, Arizona. Defendant, an Arizona corporation, was engaged in the canning of various vegetables grown locally by the farmers. The cannery entered into contracts with the farmers of that area to buy their produce for canning. Plaintiff contends that he entered into a verbal contract with defendant for the sale of sweet potatoes to be grown by him, through the defendant's plant manager, Mr. Kermit Day. The defendant failed to accept for delivery to it plaintiff's sweet potatoes; therefore plaintiff contends that since no timely notice of breach was given to him by the defendant the sweet potatoes were spoiled and rendered practically worthless.
The defendant makes five assignments of error which will be discussed in the order presented. Defendant's first assignment of error states that the evidence did not show an actual or an implied agency on the part of Day.
There are two main types of agency, one actual, and the other ostensible or apparent. 1 Mechem on Agency, 2d Ed., 37, sec. 57. The authority of an actual agent can be either express, or implied. If there is evidence that the principal sought to be charged has delegated authority to the supposed agent by oral or written words which authorize him to do a certain act, or series of acts, then the authority of the agent is express. If there is no evidence [74 Ariz. 73] of express authority, then the next question is whether the agent possesses implied authority. The test of whether implied authority exists is well-stated in 2 C.J.S., Agency, § 23, pp. 1045, 1046, where it is said:
"The relation of agency need not depend upon express appointment and acceptance thereof, but may be, and frequently is, implied from the words and conduct of the parties and the circumstances of the particular case. If, from the facts and circumstances of the particular case, it appears that there was at least an implied intention to create it, the relation may be held to exist, notwithstanding a denial by the alleged principal, and whether or not the parties understood it to be an agency. * * *