Cape County Savings Bank v. Gwin Lewis Grocery Co.

• Decision Date: 25 October 1920
• Docket Number: 20965,20995
• Citation: 123 Miss. 443,86 So. 275
• Court: Mississippi Supreme Court
• Parties: CAPE COUNTY SAVINGS BANK ET AL v. GWIN LEWIS GROCERY CO. ET AL

86 So. 275

123 Miss. 443

CAPE COUNTY SAVINGS BANK ET AL v. GWIN LEWIS GROCERY CO. ET AL

Nos. 20965, 20995

Supreme Court of Mississippi

October 25, 1920

October 1920

1. PRINCIPAL AND AGENT. Agent's power limits his authority to bind principal.

The authority of an agent to bind his principal rests upon the powers conferred upon him by the principal.

2. PRINCIPAL AND AGENT. Agent's authority cannot be proved by his statement.

The authority of an agent cannot be proved by the mere statement of the agent.

3. PRINCIPAL AND AGENT. Traveling salesman cannot make absolute contract of sale.

Unless expressly authorized by his principal, a traveling salesman or "drummer" has authority only to solicit orders and transmit the same to his principal for approval, and may not make an absolute contract of sale.

HON. Z A. BRANTLEY, Special Chancellor.

APPEAL from chancery court of Holmes county, HON. Z. A. BRANTLEY Special Chancellor.

Suit by the Gwin Lewis Grocery Company against the Cape County Milling Company and the Cape County Savings Bank and others. Decree for the Grocery Company, and the Milling Company and the Bank and others separately appeal, and the appeals were consolidated. Reversed, and bill dismissed.

Reversed, and bill dismissed.

E. F Noel, for appellants.

1. According to his own evidence, and to the answer of the Cape County Milling Company duly sworn to and to the depositions of its alleged agent, J. D. Welch and of the president and manager of the Leflore Grocery Company, Welch was a mere drummer, and according to the evidence of all these except Weaver, he had no authority to sell except on confirmation, and therefore the rejection of the order of the drummer Welch was authorized, and avoided all liability, as was held by this court in Becker v. Clardy, 96 Miss. 301, 309, 51 So. 211, where this court said salesman or 'drummer' has authority only to solicit orders: "Unless expressly thereunto authorized, a traveling salesman or 'drummer' has authority only to solicit orders and transmit the same to his principal for approval, and may not make an absolute contract of sale."

"Where defendant rejects within a reasonable time an order for goods and offered to return the amount of the check sent by plaintiff with the order, the collection of the check upon its receipt with the order did not of itself amount to an acceptance of the order."

2. The authority of an agent cannot be established by the unsupported declarations of the agent, nor by his acts. M. & V. R. R. Co. v. Cocke, 64 Miss. 715, 714, 716; Therrell v. Ellis, 85 Miss. 494, 498-297. The damages were excessive and should have been reduced. 48, R. C. L., Pr. 442-5.

3. The authority of the agent to bind his principal rests on the power conferred upon him by the principal. Gulfport, Mississippi Traction Co. v. Faulk, 80 So. 3440.

4. "Those who deal with an agent or supposed agent must learn the scope of his agency, as to which they ast at their peril." Busby v. Y. & M. V. R. R. C., 90 Miss. 13, 16.

5. The uncontradicted evidence of the cashier of the Cape County Saving Bank, Alvin A. Boss, clearly and uncontradictedly established, that the Cape County Savings Bank purchased and paid for the one thousand nine hundred twelve dollars and twenty-five cents draft which was collected and held by the Merchants and Farmers Bank & Trust Company and garnished and condemned in this case.

6. The record in this case shows that the Merchants and Farmers Bank & Trust Company, garnishee, collected this draft of one thousand nine hundred twelve dollars and twenty-five cents before the institution of this suit, did not put it into court, but mixed it with their general funds, and have kept it ever since, and should be charged with legal interest thereon and a decree rendered against it in favor of appellant, the Cape County Savings Bank.

H. H. Elmore, for appellees.

We are very well aware of the authority usually possessed by that class of salesmen usually and commonly known as drummers. But the common acceptation of the term "drummer" denotes "commercial agents who are traveling for wholesale merchants, and supplying the retail trade with goods, or rather taking orders for goods to be shipped to the retail merchant." State v. Miller, (N. C.), 53 Am. Rep., 470; 6 Am. & Eng. Ency. L. (2 Ed.), 223; 14 Cyc., 1087.

In the present case, Welsh was not representing a wholesale merchant. He was representing a manufacturer. Welsh was not selling to the retail merchants. He was selling to wholesalers. It is true that the salesman in Becker Co. v. Clardy, 69 Miss. 307, the Becker Company, was engaged in the manufacture of soda fountains; but Clardy was a druggist in Starksville, evidently only a retailer, and in fact the ultimate consumer with regard to the soda fountain.

"Parties dealing with an agent have a right to presume that his agency is general and not limited, and the presumption is that one known to be an agent is acting within the scope of his authority." Austrian & Co. v. Springer, 34 Am. St. 353; Trainor v. Morrison, 57 Am. Rep. 791.

"Third persons dealing with an agent have the right to presume that his agency is general in the absence of notice to the contrary." 31 Cyc. 1639. It is specifically charged in the bill of complaint that Welsh was the "state agent" of the milling company. It is nowhere denied in the answer that he was such and entitled to wear that title.

Welsh's conduct at the time when no suit was pending and the conduct of the Milling Company since the suit was filed, favor the contention that he had full authority. But irrespective of the questions above, briefly discussed, we are entitled to have this case affirmed.

The decision of the case was mainly on questions of fact. The burden was on appellants to show that the decision was manifestly and obviously wrong, as all presumptions in favor of the correctness of the decree are strong in our favor. We now ask the attention of the court to Exhibit 9 to the testimony of Morris Lewis, being a letter from the Gwin Lewis Grocery Company to the Cape County Milling Company; to Exhibit 10 to the testimony of the same witness, being a letter from the Cape County Milling Company to the Leflore Grocery Company; also Exhibits 11, 12, 13, and 15 to the testimony of the same witness, being correspondence by letter and telegrams between appellees and the Milling Company. None of these exhibits are in the record. They were material testimony in the case. They were read in evidence before the chancellor. How can the court pass on the correctness of his finding if the court has not before it all the evidence which was offered before him? It not only cannot do so, but will not try; for, is it not written that "a question depending upon the evidence for determination cannot be reviewed by this court unless it has before it all of the evidence upon which it was decided by the court below, which fact must affirmatively appear from the record. Board of Supervisors v. Banks, 80 So. 530; Miss. Oil Co., v. Blaker, 20 So. 156; Wilson v. Brown, 94 Miss. 608. For the same reason, questions raised about the admissibility of the testimony cannot be considered.

We therefore respectfully ask an affirmance of these cases.

Booth & Pepper, for appellees.

Appellants, who were defendant in the court below, presented the following defenses to the suits in the court below, and renew same here. First: The Cape County Milling Company, in its original answer and cross-bill, set up one defense as follows: (a) That J. D. Welsh, State Agent for the Cape County Milling Company, had no authority to make a binding contract for the sale of flour, that all contracts had to be confirmed by them, and they refused to confirm the contracts in question.

The proof clearly shows that J. D. Welsh with headquarters at Edwards House, Jackson, Mississippi, held himself out as state agent for Mississippi for the Cape County Milling Company, and so signed all orders and contracts for the sale and purchase of flour by him for the Cape County Milling Company, to customers in Mississippi, including appellees Cole-Baker Company, of Durant, Mississippi, and others; that he was permitted by the Cape County Milling Company to so solicit orders for flour in the state of Mississippi, and to execute and deliver contracts of sale for and on behalf of Cape County Milling Company, and signed his name as J. D. Welsh, State Agent for Mississippi, for the Cape County Milling Company, of Jackson, Mississippi. The agency and authority of J. D. Welsh was never questioned by Cape County Milling Company to sign his name to all orders and contracts of sale, as J. D. Welsh, state agent, and no attempt so far as the evidence discloses was made by the Cape County Milling Company to limit the authority of their state agent in Mississippi, to the mere solicitation of orders, but on the contrary he was permitted to hold himself out as the State Agent of the Cape County Milling Company in Mississippi, and to sign orders; and further when appellees desired on the 29th day of August, 1916, a short time after the Cape County Milling Company had refused to carry out his contracts sued on in this case, to ascertain the market price of flour on that date for the very purpose of establishing their actual losses on account of the failure of the Cape County Milling Company to comply with its contracts, they wired the Cape County Milling Company for prices of the same grades of flour originally contracted for. The Cape County Milling Company did not give them the information desirel, but wired appellees that their Mr. J. D. Welsh of Jackson, Mississippi, would submit and furnish the information and prices of flour desired and asked for, which information Mr. Welsh...