Wheeler & Wilson Mfg. Co. v. Givan

Decision Date30 April 1877
Citation65 Mo. 89
PartiesWHEELER & WILSON MANUFACTURING COMPANY, PLAINTIFF IN ERROR, v. GIVAN.
CourtMissouri Supreme Court

Error to Cass Circuit Court.--HON. F. P. WRIGHT, Judge.

Boggess & Sloan and R. F. Railey for plaintiff in error.

1. An agent to sell is not authorized to barter or dispose of his principal's goods or property in any unusual manner. Benny v. Rhodes, 18 Mo. 147.

2, The board furnished to Moore, the agent, cannot be treated as a payment. He could receive nothing but money in payment, unless otherwise expressly directed, or that power might be deduced from the habits of the parties or the customs of the trade. Story on Agency, 6th Edition, sections 98, 181, 215, 413, 429, 430; Buckwalter v. Craig, 55 Mo. 71; Wharton on Agents, sec. 210.

3. No antecedent or contemporaneous verbal stipulations or agreements between the contracting parties can be admitted in evidence to contradict or vary the terms of a written contract. Helmrichs v. Gehrks, 56 Mo. 79; Murdock v. Ganahl et al, 47 Mo. 135; Cockrill v. Kirkpatrick, 9 Mo. 688; Woodward v. McGaugh, 8 Mo. 161; Singleton v. Fore, 7 Mo. 517; Lane v. Price, 5 Mo. 101; Ashley v. Bird, 1 Mo. 640; Kochring v. Mumminghoff, 61 Mo. 407; Forsyth v. Kimball, 91 U. S. 291; Heywood v. Perrin, 10 Pick. 228.

4. A party dealing with an agent of limited power, and making a contract beyond the authority of the agent with knowledge of such limitation of authority, cannot hold the principal bound thereby. Story on Agency, 6th Edition, secs. 73, 127, 133, 63, 98; 1 Parsons on Contracts, 3d Edition, page 41, note f, and authorities there cited. Tate v. Evans, 7 Mo. 419; Goodman v. Simonds, 19 Mo. 106. 1 Am. Leading Cases, 5th Edition, marginal page 561, top page 680 and note 1; Flanagan v. Alexander, 50 Mo. 51; Hoffman v. John Hancock Mutual Life Ins. Co., Chicago Legal News, May 27, 1876; s. c. 3 C. L. J. 448.

Hall & Givan for defendant in error.

1. The agent had the machines in his possession, had power to sell them and receive pay for them, to collect notes before given for machines--in short, make any and all contracts in reference to the sale of machines. No limit to his agency anywhere appears. It was competent for him to make such a contract as he did make with defendant. The agreement to take part of the pay for the machine in board was an inducement to defendant to buy the machine. It was a part of the res gestae. The authority of an agent need not necessarily be proved by an express contract, but may be proved by the habit and course of business of the principal, and if a man holds out another as his agent, and thus induces persons to deal with him as agent, the principal is estopped as to such third parties from denying the agency by which such agent has been transacting such business. Brooks v. Jameson, 55 Mo. 505.

2. The power to sell includes the power to receive payment, and a party who is intrusted with the possession of goods to sell them is also entitled to receive payment. Story on Agency, Sec. 102. Johnson v. McGruder, 15 Mo. 365; Sumner v. Saunders, 51 Mo. 89; Brooks v. Jameson, 55 Mo. 505; Rice v. Groffman, 56 Mo. 434; Lumley v. Corbett, 18 Cal. 494.

3. Whenever one of two innocent parties must suffer by the act of a third, he who has enabled such third party to occasion such loss must sustain it. 1st Parsons on Contracts, page 938 chapt. 3; Hanks v. Drake, 49 Barb. 186; Rice v. Groffman, 56 Mo. 434.

4. The statement or memorandum at the top of the note in reference to the authority of agents is no part of the note-- is not a condition on the margin of said notes. It is not signed by A. Sumner nor does it purport to be a restriction on any of A. Sumner's agents.

NORTON, J.

This was a suit instituted before a justice of the peace in Cass county, on two promissory notes, one for the sum of $20.00, and the other for $25.00. There was a trial before the justice and judgment for the defendant, from which plaintiff appealed to the Circuit Court, where, upon a trial de novo, judgment was again rendered for defendant, from which plaintiff, after an ineffectual motion for a new trial, has appealed to this court. On the trial it was agreed by the parties that the evidence would show that the notes sued on were executed in part payment for a Wheeler & Wilson sewing machine, sold by J. W. Moore as the agent of A. Sumner, the payee in said note; that said Sumner at the date of said notes was the general agent of plaintiff, and since the maturity of the same, transferred them to plaintiff; that the whole amount of the other notes given for said machine has been paid in cash by defendant, and a portion thereof was paid to Moore; that at the time of the sale of said machine, it was agreed between defendant and said Moore, that said defendant should board said Moore and his wife, who was helping him, and his team, which was being used in the selling of machines, at a stipulated price for board then agreed upon, and that the amount of such board should be received in payment on said machine, and credited on the notes given for the same; that such agreement was one of the inducements to defendant to purchase the machine; that said Moore agreed to have the amount of such board credited on the notes, and to receive it in payment thereof, and that this agreement was made at the time of the sale, and immediately before the execution of the notes; that the amount paid by defendant in such board, on said notes, equals or exceeds the balance of the notes sued on; that said Moore, as agent for said Sumner, sold Wheeler & Wilson sewing machines for cash, and received the money therefor, and as such agent, collected notes given for said machines to said Sumner; that the commission of said Moore as agent, was twenty-one dollars on each machine, and he was to pay his own expenses; that during the time he boarded with defendant, he sold fifteen or twenty of them; that plaintiff nor said Sumner ever ratified said agreement, and that no credit was ever entered on said notes for board, and that the same have been in the possession of plaintiff and said Sumner, and that they knew nothing of said alleged agreement.

1. AGENT TO SELL: implied powers.

I. Upon the above facts the case was submitted to the court without the intervention of a jury. The refusal of the court to give the following instruction on behalf of the plaintiffs, is the error complained of: “If the court believes from the evidence that the defendant executed the notes read and sued on in this case, then the court should find for the plaintiff the amount which appears to be due thereon, notwithstanding the court may also believe that the...

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