Austrian v. Springer

• Decision Date: 23 December 1892
• Court: Michigan Supreme Court
• Parties: AUSTRIAN et al. v. SPRINGER.

54 N.W. 50

94 Mich. 343

AUSTRIAN et al. v. SPRINGER.

Supreme Court of Michigan

December 23, 1892

Error to circuit court, Kent county; Allen C. Adsit, Judge.

Action bye Leo Austrian & Co. against Nathan Springer for failure to deliver goods contracted to be sold by defendant to plaintiffs. There was a verdict in plaintiffs' favor, and defendant brings error. Affirmed.

John T. Miller and Taggart, Wolcott & Ganson, for appellant.

Stuart & Knappen, for appellees.

McGRATH C.J.

Plaintiffs are manufacturers of furniture, at Chicago, Ill., and defendant is a manufacturer of glass at Fuerth, Bavaria. On the 21st of March, 1890, one Frank O. Fitton called at plaintiffs' office; gave to plaintiffs' manager a card as agent of defendant; "said he came to sell me German looking-glass plates for importation; that he was selling for defendant, -and quoted prices;" and after some negotiations plaintiffs signed a written order drawn up by Fitton, which is as follows "[Letter heading of Leo Austrian & Co.] Chicago, March 21, 1890. Nathan Springer, Fuerth, Bavaria-Dear Sir: Please enter our order for following German looking-glass plates same to be shipped as soon as possible,-not later than May 15th,-and f. o. b. Chicago; freight to be prepaid to New York, and duty and freight from New York to be paid by consignee, and deducted from invoice. [List given.] Terms and discount: 60-10-2 1/2 on plain; 60-10-5-2 1/2 on beveled. The size 10 1/2 by 17, beveled, being quoted at net 37 1/2 cents, f. o. b. Chicago. Net 60 and 90 days. Leo Austrian & Co." Fitton drew up, signed, and delivered to plaintiffs, the following: "[Letter head of Leo Austrian & Co.] Chicago, March 21, 1890. Ordered from Nathan Springer, Fuerth, Bavaria, following German mirrors, to be shipped soon as possible,-not later than May 15. Terms, f. o. b. Chicago. Net 60 and 90 days. [List of glass, prices, terms, and discounts, same as in order signed by plaintiffs.] Frank O. Fitton, Agent." Fitton said he would accept the order. The discounts were from list prices. Plaintiffs had a price list, on which Fitton gave the discounts. The defendant did not deliver the goods. About May 1, 1890, plaintiffs received from defendant the following letter: "[Letter head of N. Springer.] Fuerth, Bavaria, April 15, 1890. Mess. Leo Austrian & Co., Chicago, Ill.-Gentlemen: Your valued order March 21st, duly to hand, and regret not to be able to execute it in the time specified. Hoping to hear from you later, I remain, truly yours, N. Springer." Leo Austrian says: "Upon receipt of that letter, I wrote to defendant. I suppose my letter was sent out of the office as all the mail is. The letter copy book was accidentally destroyed. Up to the 1st day of July, I expected that the order would be filled. On June 28, 1890, I placed an order in New York. They would give me no price at the time, but the order was placed subject to July prices." This suit is brought to recover the difference between the prices named in the order given to Fitton and the prices paid. Plaintiffs recovered, and defendant appeals.

The first question raised is that the evidence fails to show a contract between the parties: (1) The order signed by plaintiffs and the paper signed by Fitton do not constitute a contract; and (2) it does not appear in evidence that Fitton had authority to make a binding contract. These two propositions practically resolve themselves into one; for, if Fitton had authority to bind defendant, the procurement and receipt of the order was sufficient, in itself, to create a contract. Kessler v. Smith, (Minn.) 44 N.W. 794. In that case the order was solicited at St. Paul, Minn., by one of the firm, and was addressed to the firm at New York. In Heffron v. Armsby, 61 Mich. 505, 28 N.W. 672, a memorandum of sale was signed by the purchaser only, and delivered to the soliciting agent. It was held that, if the agent was authorized to act for the vendor, the memorandum was sufficient to satisfy the statute of frauds, In addition to the receipt of the order by the agent, the agent executed an acknowledgment, "Ordered from Nathan Springer," etc., and signed it, "Frank O. Fitton, Agent." This cannot be treated as a mere receipt for an order, nor is it an acknowledgment of a request to enter an order, but rather an acknowledgment of the entry of the order signed by Fitton as agent for his principal.

As to the authority of the agent, there is no evidence of any limitation upon his powers. It appears that he was the agent of defendant. He was in defendant's employ, and sent out for the express purpose of taking orders for glass. He was a resident of the United States, and was employed by letter. He held himself out as an agent, and that to defendant's knowledge. In his correspondence with his principal, he wrote upon a letter head in which his name appeared as "manufacturer's agent." The only question that can be raised under this record is as to the extent of his authority. Parties dealing with an agent have a right to presume that his agency is general, and not limited. Methuen Co. v. Hayes, 33 Me. 169; Trainer v Morrison, 78 Me. 160, 3 A. 185. And the presumption is that one known to be an agent is acting within the scope of his authority. Inglish v. Ayer, 79 Mich. 516, 44 N.W. 942. Plaintiffs went further. Evidence of persons who had dealt with defendant through this agent was introduced to show the character of his agency. This was competent. Heffron v. Armsby, supra; Haughton v. Maurer, 55 Mich. 323, 21 N.W. 426; Gallinger v. Traffic Co., 67 Wis. 529, 30 N.W. 790. One Selkin testified that he had known defendant since January, 1889; that for three years the firm of which he was a member had been buying glass from defendant,-a part of that time through Fitton; that orders had been given by his firm, through Fitton, in July, 1889, September, 1889, and February, 1890. In December, 1889, witness received an invoice from defendant of the September order, on the heading of which was printed the words, "Agents are not authorized to collect or receive money on my account." The witness says, further: "Mr. Fitton solicited, in person, the order, which I handed to him personally, and the order mailed to him was solicited by him, in person, during the same time we purchased goods direct from the defendant, Springer. The defendant mailed us two price lists, and Mr. Fitton has at divers times made quotations verbally to us. I have other bills showing sales from Springer to H. Lieber & Co., either verbally or through correspondence, but am unable to fix any dates as to when such orders were given." One Pugh testified that he had acted as agent for defendant, Nathan Springer. That on the 15th day of May, 1890, he became the partner of Warren C. Dewey, who was at that time the agent at Grand Rapids for the defendant, for the sale of his products. That the agency ended on the 1st of July, 1890, by reason of Nathan Springer's entering into a pool, in consequence of which he could not sell to parties outside of the combination. "We were authorized to take orders for the defendant for German looking-glass plates." That "we were in the habit of accepting orders without submitting them to the defendant, except in cases where a new account was opened, when the name was referred by us to the financial agent at New York of the defendant, for the purpose of ascertaining the financial standing of such new customer, in such cases, where the standing of such new customer was doubtful. The defendant knew of this habit, and filled orders that were sent to him. We were apprised of the prices at which we were authorized to make sales either by cablegram or by letter. I do not know Frank O. Fitton. I do not know whether he was an agent of the defendant, but I know he was reputed to be, and was generally acknowledged to be such an agent, among the trade." It is well settled that the authority of the agent must depend, so far as it involves the rights of innocent third persons, who have relied thereon, upon the character bestowed, rather than the instructions given. In other words, the principal is bound to third persons, acting in ignorance of any limitations, by the apparent authority given, and not by the express authority. Mecham, Ag. 283. The question is not, what was the authority actually given? but, what was the plaintiff, in dealing with the agent, justified in believing the authority to be? Price v. Earl of Torrington, 1 Amer. Lead. Cas. 567, 568; Griggs v. Selden, (Vt.) 5 A. Rep. 504; Insurance Co. v. Pierce, 75 Ill. 426; Packet Co. v. Parker, 59 Ill. 23; Inglish v. Ayer, 79 Mich. 516, 44 N.W. 942. Whatever attributes properly belong to the character bestowed will be presumed to exist, and they cannot be cut off by private instructions of which they who deal with the agent are ignorant. Among those attributes is the power to do all that is usual and necessary to accomplish the object for which the agency was created. Mecham, Ag. 647; Tobacco Co. v. Jenison, 48 Mich. 459-462, 12 N.W. 655. Parties sent out by manufacturers to solicit orders are held out to the trade as having authority to act...