Cohen v. Saffer, 21166.

• Decision Date: 29 August 1931
• Docket Number: No. 21166.,21166.
• Citation: 43 Ga.App. 746,160 S.E. 130
• Parties: COHEN v. SAFFER.
• Court: Georgia Court of Appeals

43 Ga.App. 746

160 S.E. 130

COHEN

v.SAFFER.

No. 21166.

Court of Appeals of Georgia,

Division No. 2.

Aug. 29, 1931.

Syllabus by Editorial Staff.

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Action by Samuel Saffer against A. Cohen. Judgment for plaintiff, and defendant brings error.

Affirmed.

Hyman M. Morris, of Atlanta, and L. S. Maritzer, of New York City, for plaintiff in error.

A. S. Grove, of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

BELL, J.

1. "A traveling salesman is a special agent, whose authority is presumed to be limited to taking and receiving orders to be transmitted to his principal for acceptance." Dannenberg Co. v. Hughes, 30 Ga. App. 83, 80, 116 S. E. 892, 893. Accordingly, such a salesman has no implied authority to employ another to assist him in selling goods for his principal and to obligate his principal to pay a commission for such services. Cf. Glisson v. Burkhalter, 31 Ga. App. 365 (3), 120 S. E. 664. None of the evidence offered by the defendant would have tended to support the allegations of his counterclaim, and the court did not err in excluding all the evidence offered for this purpose, nor in thereafter nonsuiting the cross-action.

2. "It is the right of a witness to be examined only as to relevant matter; and to be protected from improper questions and from harsh or insulting demeanor." (Civ. Code 1910, § 5870). But "the right of cross-examination, thorough and sifting, belongs to every party as to the witnesses called against him" (Civil Code of 1910, § 5871); and "the discretion of the court in controllingthe conduct of counsel towards an opposing witness will not be interfered with, unless some gross outrage to the party, and resulting damage to his cause, clearly appears." Griffin v. State, 18 Ga. App. 462 (3), 89 S. E. 537; Kelly v. State, 19 Ga. 425 (3); Enright v. City of Atlanta, 78 Ga. 288 (4); Harris v. Central Railroad, 78 Ga. 525 (3), 3 S. E. 355.

(a) This being a suit on an account, in which the defendant denied receiving a certain portion of the goods, but bis evidence being self-contradictory and in some degree inconsistent with the testimony of other witnesses as to this issue, the trial judge did not abuse his discretion in permitting counsel for the plaintiff to state to the defendant, by way of cross-examination, "I want to give you one more opportunity to correct your statement that you did not receive these two shipments of merchandise."

3. In view of the notes of...