E. D. Keyes & Co. v. Union Pac. Tea Co.

• Decision Date: 08 October 1908
• Citation: 71 A. 201,81 Vt. 420
• Court: Vermont Supreme Court
• Parties: E. D. KEYES & CO. v. UNION PAC. TEA CO.

71 A. 201

81 Vt. 420

E. D. KEYES & CO.

v. UNION PAC. TEA CO.

Supreme Court of Vermont. Rutland.

Oct. 8, 1908.

Exceptions from Rutland County Court; Eleazer L. Waterman, Judge.

Assumpsit by E. D. Keyes & Co. against the Union Pacific Tea Company. Judgment for plaintiff, and defendant excepted. Reversed and remanded.

Lawrence & Lawrence and B. L. Stafford, for plaintiff.

Butler & Moloney, for defendant.

ROWELL, C. J. This is assumpsit for goods sold and delivered, from time to time, from July 25, 1905, to January 19, 1906, consisting of a chest of tea and nine barrels of sugar.

The plaintiffs are wholesale grocers, residing and doing business in the city of Rutland. The defendant is a New York corporation, having its principal office and place of business in the city of New York, and is an importer, and a retail dealer in teas, coffees, and spices, and a wholesale and retail dealer in sugar, having a branch store in the city of Rutland, which it claims was for the sale of its own merchandise only. This branch store was in charge of one Moore as manager, and had been, most of the time, for 15 or 20 years, who conducted the business thereof under a written contract with the defendant. The plaintiff claimed to have sold and delivered said goods to Moore as the defendant's agent. But the defendant claimed that under its contract with Moore he had no authority to buy goods for said store, neither for cash nor on credit, and no authority to buy the goods in question, and none to pledge the defendant's credit therefor. The plaintiff's evidence tended to show that the goods were ordered by Moore for said branch store, and were delivered there, put in with the other goods in the store, and a large part of them taken out and distributed to customers of the store by the defendant's canvassing agents; that the money received therefor was turned over to Moore at the store, mingled with other money received thereat for goods sold, and by him sent to the defendant in New York; that when the goods were bought, there was a shortage of such articles in the store; and that they were needed to fill orders that had been taken by the canvassing agents, and temporarily to supply customers at the store, which shortage was occasioned by delay in transit of goods ordered by Moore of the defendant's New York store, or because he did not seasonably place his orders. The plaintiff's evidence further tended to show that Moore as such manager had, from time to time, for about 16 years, bought similar goods of them for said branch store, which were delivered and paid for in the usual course of business and sold, and the avails thereof accounted for by Moore, as aforesaid.

The written contract between Moore and the defendant provided, among other things, that Moore was to have the general charge and management of the sale of the defendant's merchandise at said branch store, and such other authority as was therein specifically conferred; was to engage such clerks and other employés as the defendant should deem necessary for the due prosecution of its business at said store, appoint their duties, and see to it that they faithfully performed them; was to have the custody of all the defendant's property contained in said store or used in the business thereat, including money, merchandise, checks, presents, horses, wagons, harness, and fixtures, and to be responsible to the defendant therefor; and was to sell only that merchandise and property of the company which should be intrusted to him for that purpose. The contract authorized Moore to incur expenses, and to make disbursements for account of the defendant from the proceeds of sales, for the following purposes: "The salary of himself and the salaries of other employés in said store; commissions of salesmen for selling goods, when paid by him in accordance with written instructions of the company; gas, electric light or power, coal, advertising to secure salesmen; strictly temporary wagon or harness repairs; feed and shoeing of horses used on delivery wagon connected with said store; freight and cartage; express; the hire of horses and wagons for making deliveries of merchandise therefrom; veterinary surgeon's services for emergencies; and other petty small items necessary for the maintenance of the store or the prosecution of the business thereat." The section of the contract containing this authority closed by saying that the manager should have no authority to subject the company to any liability, except as thereinbefore expressly declared.

The plaintiffs claimed that in the authority thus conferred upon Moore to incur expense, the clause "and other petty small items necessary for the maintenance of the store or the prosecution of the business thereat" authorized him to buy the goods in question. The defendant claimed the contrary. The court submitted the clause to the jury for its consideration, saying that its construction...