Dowagiac Mfg. Co. v. Hellekson
| Decision Date | 05 July 1904 |
| Citation | 100 N.W. 717,13 N.D. 257 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass county; Pollock, J.
Action by the Dowagiac Manufacturing Company against O. H Hellekson. Judgment for defendant, and plaintiff appeals.
Affirmed.
Newman Spaulding & Stambaugh, for appellant.
Where title to goods sold is reserved by the seller as security only, he can waive the security and sue for the purchase price. Appeal of Beach, 20 A. 475; Bessinger Co. v Cain, 18 S.W. 136; Monroe v. Williams, 15 S.E 279; Crompton v. Beach, 25 A. 446; Campbell Co. v. Rocaway, 29 A. 681; Truax v. Parvis, 32 A. 227; Earl v. Robinson, 33 N.Y.S. 606; Parlin Co. v. Moline Co. 27 S.W. 1087; Singer Mfg. Co. v. Hatley, 21 P. 384; Burmley v. Tufts, 5 So. 627.
Whenever the parties to a contract have agreed upon the manner in which the rights under the contract shall rest, or be divested or effected, that method is exclusive. Hankins v. Rockford Ins. Co., 35 N.W. 34; Zimmerman v. Home Ins. Co., of New York, 42 N.W. 462; Smith v. Ins. Co., 15 A. 353; Marvin v. Ins. Co., 85 N.Y. 278; Kyte v. Commercial Union Assurance Co., 10 N.E. 518; Cleaver v. Traders' Ins. Co., 32 N.W. 660; Walsh v. Ins. Co., 73 N.Y. 5.
F. W. Murphy and Charles A. Tuttle, for respondent.
Where the seller retains title to goods sold to secure the purchase price, he must pursue his remedy under the code, and cannot without the consent of the purchaser treat it as an absolute sale and sue for the purchase price. Minneapolis Threshing Machine Co. v. McDonald, 87 N.W. 993; Stanford v. McGill, 6 N.D. 536, 72 N.W. 938, 38 L. R. A. 760.
If the principal elects to ratify any part of an unauthorized act, he must ratify the whole. He cannot retain what is advantageous to him and reject the rest; and the rule applies to an implied ratification as well as an express one. McClure v. Briggs, 58 Vt. 82; Eberts v. Selover, 44 Mich. 519; Henderson v. Cummings, 44 Ill. 325; Crans v. Hunter, 28 N.Y. 389; Reid et al. v. Hibbard, 6 Wis. 175; Cushman v. Lochre, 2 Mass. 106; Parish v. Reeves, 23 N.W. 568; Bacon v. Johnson, 22 N.W. 276; Mechem on Agency, section 148.
The principal must act promptly upon receiving information. Ward v. Williams, 26 Ill. 447, 79 Am. Dec. 385, 30 Am. Dec. 718; Foster v. Rockwell, 104 Mass. 167; Kelsey v. National Bank of Crawford, 69 Penn. St. 426.
Whether repudiation was had in time was a question for the court. McDermid v. Cotton, 70 Am. Dec. 298. Unless the principal dissents and gives notice of his nonconcurrence within a reasonable time, his assent and ratification will be presumed. Mobile & Montgomery Ry. Co. v. Jay, 65 Ala. 113; Kelsey v. National Bank, 69 Penn. St. 426; Searing v. Butler, 69 Ill. 575.
A clause in an agreement that no one has any authority to add to, abridge or change in any manner, does not invalidate a waiver of the provisions of an agreement by an agent of a corporation, one of the parties. D. M. Osborn & Co. v. Backer, 47 N.W. 70; Hunter v. Cobe, 87 N.W. 612; Carrigan v. Lycoming Fire Insurance Co., 53 Vt. 418.
A general agent is deemed possessed of all the powers of an agent at the head office. Kerr on Ins. 183; Coles v. Jefferson Ins. Co., 23 S.E. 732; May on Insurance 126; Imperial Fire Ins. Co. v. Dunham, 117 Pa. 460; Dwelling House Ins. Co. v. Dowdall, 42 N.E. 606; Phenix Ins. Co. of Brooklyn v. Cadwell, 58 N.E. 314.
In the year 1901 plaintiff and defendant entered into a written contract under which defendant was to sell at Fairmount, N.D., and all territory tributary thereto, the grain-seeding machinery manufactured by plaintiff at Dowagiac, Mich., during the year 1902. The contract provided for a settlement of accounts on May 1st, as all sales for the year were deemed to have been made by that date. The contract also provided that, if payments were made for sales of that year by June 1st, certain discounts would be made by plaintiff. The contract also contained the following clause: "This agreement and settlements of accounts governed by it are to be consummated only by written approval of said party of first part from its home office at Dowagiac, Michigan, and upon this and all future shipments, no other contract and no agreement, consideration or stipulation, modifying or changing the tenor hereof, shall be recognized or binding, unless they are so approved."
The principal question at issue is upon the validity of a settlement made by a general agent of the company with the defendant. The facts under which such settlement was made are the following: On March 31st defendant sent to the general agent of the company a check for $ 283.77, with a letter accompanying the check. The letter is not in evidence, and its contents are not given. The general agent sent the check to the company at its home office, and on April 3d the company wrote defendant that the remittance was not enough, by $ 14.96, and explained wherein it did not represent the full amount due, as it construed the contract; and the letter further stated that the check would be held by it pending a reply to the letter. Defendant did not reply to the letter, nor was anything done or said by plaintiff in reference thereto until the following July, when the plaintiff requested one Swayne, plaintiff's general agent in this state, to go to Fairmount for the purpose of making a settlement with the defendant for all matters arising out of the contract, including the dispute that had arisen as to the sum to be remitted, over and above the sum of $ 283.77, remitted on March 31st, if any. The general agent went to Fairmount, and, after going over the entire account, and all transactions connected with or growing out of the contract, arrived at a settlement. This settlement included in its terms the amount due the plaintiff on account of the goods furnished under the contract, and the disposition of the unsold goods that defendant had on hand, and payment for repairs. The agent took from defendant what is called in the record a "warehouse receipt," and sent it with a letter, and $ 14.96, the amount agreed on as due from the defendant, to the company, at Dowagiac, Mich. The receipt taken by plaintiff's agent at this time contained a list of the unsold goods, and provided that they should be safely kept and fully insured by defendant until February, when defendant would again purchase them under the same terms as stated in the 1901 contract. The agent transmitted the check and the receipt to the company at Dowagiac on or about July 12th. The company replied to said letter containing the check and receipt, by writing the defendant on August 5th, nearly four weeks after its receipt. In this reply plaintiff claimed that the settlement was not in accordance with the contract, and that, defendant not having settled for all matters pursuant to the terms of the contract, defendant owed the company in cash for all goods received, at list price. In other words, it charged defendant with all the goods sent him at list prices. Plaintiff returned the receipt, but kept both checks, but offered to accept defendant's secured note for the amount claimed to be due and unpaid. The defendant did not answer this letter, but wrote the general agent concerning it, and stated to him that he would not comply with the company's demands, but would stand on the settlement made with him as general agent. This suit was thereafter commenced, and judgment demanded for the whole amount of the goods delivered, at list prices; being the sum of $ 609.67, with interest thereon at 8 per cent since May, 1902, over and and above all payments made by defendant.
The answer denies that any sum is due plaintiff, as all matters in difference between the parties were duly settled and full payment made on July 12, 1902. The issue presented is whether the settlement of July 12th is a binding one. Plaintiff insists that no settlement could be made by the general agent unless followed by the written approval of the company at its home office. Defendant insists (1) that the agent, Swayne, was general agent of the company, and had authority to settle with defendant under his general authority or powers; (2) that express authority was conferred on him by the plaintiff to settle with defendant, and (3) if such settlement was unauthorized, plaintiff has ratified it by retaining the money paid by virtue of and under the terms of said settlement. The arguments on behalf of the parties are mostly directed to the question as to whether there was a binding settlement under the contract, or not. The effect of the clause of the contract quoted is to restrict the right of agents to settle disputed matters growing out of these contracts. The agents have no right to make these settlements on their own responsibility. The agent cannot effectually make a settlement under this clause unless he has special authority so to do, or has general authority sufficiently broad to include settlements under this contract.
We do not agree with plaintiff's contention that such a clause in such a contract cannot be modified by subsequent acts, or ratified by subsequent acts or waived. This provision of the contract is not to be subjected to a different construction than any other of its terms. To say that this clause of the contract renders all settlements thereunder invalid, however made, unless evidenced by written approval of the home office, is to say that parties have no right ever to change what they have agreed to do, or their manner of doing it. If this is true, it gives to this contract a character that does not ordinarily belong to contracts. In Westchester Fire Ins. Co. v. Earle, 33 Mich. 143, the court said ...
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