American Sales Book Company v. Whitaker

• Decision Date: 16 October 1911
• Parties: AMERICAN SALES BOOK COMPANY v. WHITAKER
• Court: Arkansas Supreme Court

140 S.W. 132

100 Ark. 360

AMERICAN SALES BOOK COMPANY v. WHITAKER

Supreme Court of Arkansas

October 16, 1911

Appeal from Boone Circuit Court; George W. Reed, Judge; reversed.

Judgment reversed and cause remanded.

W. F Pace and Troy Pace, for appellant.

1. The contract being clear and unambiguous and the signing thereof admitted, appellee's testimony that the goods in question were delivered to him upon 30 days' trial was inadmissible. 94 Ark. 130.

2. If an agent or salesman, who is employed to sell goods from samples and has no possession of the goods but mails the orders therefor to the company to be executed, has no authority to receive payment thereafter for them, neither would he be authorized to invalidate a written contract for the purchase of goods, and accept their return in payment of the bill. 46 Ark. 210.

J. W Story, for appellee.

1. The evidence complained of was admitted in the first place only for the purpose of explaining the alleged written order and not of contradicting it; and the record shows that on appellant's motion the court excluded from the jury's consideration all testimony as to conversations which took place prior to the signing of the order. Moreover, since appellant did not reserve in its motion for new trial any exception to the admission of any evidence except that which related to conversations between appellee and the agent which occurred after the alleged sale and delivery of the goods, it can not now complain. 67 Ark. 531; 75 Ark. 181. But the testimony was competent in order to show that the order had in fact never been given as a present binding obligation. 76 Ark. 140, and cases cited.

2. Instruction No. 2, given by the court, was correct. Appellant's agent had both actual and apparent authority to make the optional contract. 49 Ark. 320.

OPINION

FRAUENTHAL, J.

This was a suit to recover from appellee the purchase money of a recapitulator, and certain supplies connected therewith which appellant alleged it had sold to him in pursuance of a written contract. The suit originated in a justice of the peace court, from whose judgment an appeal was taken to the circuit court. In the circuit court a verdict was returned in favor of appellee, and from the judgment entered thereon this appeal is prosecuted.

The appellant was located at Elmira, N.Y., and was engaged in the manufacture and sale of the goods for the purchase money of which this action was instituted. It claims to have sold the goods to appellee through a salesman, under a written contract executed by appellee. The written contract is in the nature of an order, signed by appellee, by which he directed the appellant to ship to him by freight, f. o. b. Elmira, N.Y., said goods on or about June 20, 1909, and agreed to pay therefor the sum of $ 35; it being stated in said written order that $ 5 of said purchase money was paid in cash, and the balance was to be paid in monthly installments.

The testimony on the part of the appellant tended to prove that it shipped the goods in the manner set out in said written order, and that appellee had refused to pay therefor. The appellee testified that the appellant's salesman saw him at his place of business at Alpena, Ark., and endeavored to sell him the goods, and that he refused to buy, and finally the salesman said: "I have one more proposition to make to you, and that is this: I will send an outfit to you on trial for thirty days, and at the end of that time if it is not satisfactory you can ship it back;" and that appellee thereupon signed the order. Afterward, the goods were shipped, and upon trial they proved unsatisfactory to the appellee. Later, the salesman came to appellee's place of business, and he told the salesman that the goods were not satisfactory, and that he did not want them. He testified that the salesman then told him to box the goods up, and he would advise him where to send them. Thereupon, the appellee delivered the goods to a common carrier, taking bill of lading therefor, and shipped same to appellant, who refused to take them back.

The lower court ruled that all the testimony introduced by appellee relative to the statements of the salesman at the time the written order was signed, to the effect that the goods would be sent on trial with the privilege to appellee of shipping them back if not satisfactory, was incompetent, and instructed the jury not to consider same in evidence. Thereupon, the lower court, among other instructions, gave the following to the jury:

"2. I further instruct you that if the agent salesman who sold the goods to defendant took up the goods in question, ordered the goods boxed and held for further orders, that it would be a cancellation of the order, and you should find for the defendant."

It is urged that the court erred in giving said above instruction, because the salesman had no authority to rescind or cancel the sale after it had been completed. It is well settled, we think, that the power which an agent has to bind his principal rests upon the authority which the principal has given to him. If the agent has acted without authority, or outside of the scope of his authority, real or apparent, then the principal is not bound for such act. One who deals with an agent is at once put upon inquiry, and must discover whether the agent has the authority to do the proposed act. But where the agency is proved, without showing its extent, then it is presumed that general authority has been given in regard to the business in which such agency is concerned. Without notice to the contrary, the agent is presumed to have authority to do all acts necessary to carry out the particular employment in which he is engaged by the principal.

This court has held, in the case of Keith v Hirschberg Optical Co., 48 Ark. 138, 2 S.W. 777, that "a third person has a right to assume, without notice to the contrary, that the traveling salesman of a wholesale house has an unqualified authority to act for the firm which he represents in all matters which come within the scope of that employment." The object of the employment, and the authority, real or apparent, given to an agent who makes sales or solicits orders for goods, is to do all those things and to enter into...