Butler v. Dorman

• Decision Date: 31 October 1878
• Citation: 68 Mo. 298
• Parties: BUTLER, Plaintiff in Error, v. DORMAN.
• Court: Missouri Supreme Court

68 Mo. 298

BUTLER, Plaintiff in Error,

v.DORMAN.

Supreme Court of Missouri.

October Term, 1878.

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

R. C. McBeth for plaintiff in error.

The authority of Ridgely, the agent, was that of a broker. A broker has no authority as such virtute officii to receive payment for goods sold by him; and if payment is made to him by the purchaser, it is at his own risk. Story on Agency, § 109; Dunlap's Paley on Agency, § 270; Higgins v. Moore, 34 N. Y. 417. The cases of Sumner v. Sands, 51 Mo. 89; Brooks v. Jameson, 55 Mo. 505, and Rice v. Groffman, 56 Mo. 434, all relate to agents acting in the capacity of factors and not as brokers.

Chas. B. Wilson for defendant in error.

HENRY, J.

This was an action for the recovery of the balance of an account alleged to be due from Dorman to the plaintiffs. On the 12th day of September, 1874, the plaintiffs employed Wm. S. Ridgely as a traveling agent to sell goods for them by sample in the State of Missouri. On the 6th day of October thereafter, less than a month after his employment, he sold to defendant, on four months time, two bills of goods, one for $346.43, and the other for $27.25. The agent was not intrusted with possession of the goods sold, and was expressly forbidden, by the terms of his employment, to receive payment for goods sold.

On the 12th day of October, 1874, six days after he sold the goods to the defendant, Ridgely drew a draft on the defendant for $60, and wrote requesting him as an especial favor to him to pay the draft, promising to return the money when he again reached Clinton, or to credit the amount on the bills of goods; that he expected to return to Clinton, where defendant resided, in about ten days. Defendant paid plaintiffs all the bill except $60, insisting that he was entitled to a credit for that amount paid to Ridgely.

A jury was waived and the cause was tried by the court. The principal question for determination is presented by the first declaration of law given by the court, which was: “That if the court find from the evidence that Wm. S. Ridgely was the agent of plaintiffs only to sell merchandise by sample for plaintiffs, and that in the month of October, 1874, defendant purchased of plaintiffs, through their agent Ridgely, the bill of goods in controversy, and that some few days after said purchase said agent drew on defendant for $60, which defendant paid, then defendant is not entitled to a credit for said sum on said bill of goods against plaintiffs, unless said amount was by said agent paid over to plaintiffs, or unless said agent was authorized by plaintiffs to receive payment on such sales; but such authority to receive payment need not be express, it may be implied from the fact of selling, unless the contrary appears.” Sumner v. Sands, 51 Mo. 89; Brooks v. Jameson, 55 Mo. 505, and Rice v. Groffman, 56 Mo. 434, are relied upon as sustaining the principle announced in that instruction.

In Sumner v. Sands the court construed the card recognizing Shriver as plaintiff's agent, as creating a general agency. Said Adams, J.: “By the card read in evidence, which is admitted to be genuine, Shriver was held out to the people of Shelby county as a general agent for plaintiff for that county.” Shriver also had possession of the sewing machine when he sold it to the defendant. In Brooks et al. v. Jameson there is nothing analagous to this case. There the purchasers of the threshing machine from an agent were told, pending the negotiations for the sale, that they could pay the notes at Cameron, Missouri. Two of the notes were paid to the agents at Cameron. Vories, J., who delivered the opinion of the court, observed that “the plaintiffs, when the second note became due, had written to defendants requesting them to pay it to these same agents. This they had been told by the agents when the notes were given, was the way the payments were to be made. If the plaintiffs had by this course of dealing held out those men at Cameron as their agents to receive the money, and this induced the defendants to pay the money to the agents, they ought to be concluded thereby.”

Rice et al. v. Groffman is no authority for the doctrine of the instruction in question. It is true it is there stated in general terms that “a power to sell goods includes a power to receive payment,” but the ground upon which the decision was based appears in that paragraph of the opinion in which Judge NAPTON said: “Whatever the plaintiffs may say as to the agency of Berlzheimer, it is clear that he negotiated and effected the sale to defendant, that he had the cigars and delivered them, and there was nothing to show that he was not the owner except the bill; and conceding he was not, the presumption was that, as he had authority to sell, he had authority to receive payment.”

The distinction between factors and brokers has long been settled. A factor is one to whom goods are consigned for sale. He has the possession and a special property, and on a sale may receive payment. A broker has not possession of the goods....