Fairbanks Morse & Co. v. Dale & Co

• Decision Date: 11 March 1935
• Docket Number: 31584
• Parties: FAIRBANKS MORSE & Co. et al. v. DALE & CO
• Court: Mississippi Supreme Court

159 So. 859

172 Miss. 271

FAIRBANKS MORSE & Co. et al. v. DALE & CO

No. 31584

Supreme Court of Mississippi

March 11, 1935

Division B

1. PRINCIPAL AND AGENT.

Where agent not having possession of goods or other indicia of authority is authorized to solicit orders or make contracts to submit to principal for approval, there is no implied authority to collect, and purchaser makes payment to agent at his peril.

2 BROKERS. Principal and agent.

Brokers and traveling salesmen who have not possession of goods, and who sell for future delivery to be paid for on delivery or at future time, are without authority to collect payment for goods, and, if payment is made, purchaser makes salesman his agent to pay seller and bears risk of loss.

3. PRINCIPAL AND AGENT.

Unless expressly authorized to make absolute contract of sale traveling salesman has authority only to solicit orders and transmit them to his principal for approval, and burden of proving that salesman was authorized to make absolute contract is on person asserting and seeking to avail himself thereof.

4. PRINCIPAL AND AGENT.

Where buyer ordered from fixture company scales selected from manufacturer's catalogue, with understanding that draft for price was to be drawn by manufacturer on fixture company with shipper's order bill attached with direction to notify buyer, and it was not shown that fixture company or its salesman had authority to go beyond merely soliciting and forwarding orders subject to manufacturer's acceptance and approval, payment to fixture company Held not payment to manufacturer, and buyer was required to bear loss where fixture company failed to pay manufacturer.

APPEAL from the circuit court of Jefferson Davis County HON. HARVEY MCGEHEE, Judge.

Replevin by Dale & Co. against the Mississippi Central Railroad Company, wherein Fairbanks Morse & Co. intervened. From a judgment of the circuit court for plaintiff, on appeal from a judgment of a court of a justice of the peace, intervener and the United States Fidelity & Guaranty Company, surety on the appeal bond, appeal. Reversed, rendered, and remanded.

Reversed and remanded.

Chambers & Trenholm, of Jackson, for appellants.

The trial court erred in overruling the motion to vacate the judgment rendered by the justice court, and to remand the case.

Ettringham v. Handy, 60 Miss. 334; Andrews v. McLeod, 66 Miss. 348, 6 So. 181.

The trial court erred in excluding evidence of witness Konzelmann as to a custom of the trade.

The trial court erred in refusing the claimant a peremptory instruction.

There was nothing, to connect Fairbanks Morse & Company with the sale to Dale & Company.

2 C. J. 464, secs. 72, 73, 74.

It is the general rule that where the agent has not the possession of the goods, and no other idicia of authority, and is authorized only to solicit orders or to take contracts to submit to the principal for approval, he has no implied power to collect at any time, and the purchaser makes payment to him at his peril.

2 C. J. 605, sec. 239.

A traveling salesman or drummer, unless expressly authorized or held out as having such authority, has authority only to solicit orders and transmit the same to his principal for approval, and may not make an absolute contract of sale.

2 C. J. 593, sec. 229; L. A. Becker Co. v. Clardy, 96 Miss. 301, 51 So. 211; Bank v. Grocery Co., 123 Miss. 443, 86 So. 275; Lumber Co. v. Sibley, 130 Miss. 26, 93 So. 440.

And the burden of proving that the salesman was authorized to make such contract is upon the person asserting it, and seeking to avail himself of it.

Lumber Co. v. Sibley, 130 Miss. 26; 2 C. J. 508, sec. 125; Development Co. v. Insurance Co., 105 Miss. 184, 62 So. 169; Burns v. Keely, 41 Miss. 339.

From the whole record it is perfectly manifest that neither Steele nor Dewees nor the Dewees Fixture Company ever held themselves out to Dale & Company as agents of Fairbanks Morse & Company.

Livingston & Milloy, of Prentiss, for appellee.

It was not a question of what was the custom of the trade, but the question presented in this record is what was the real facts as regards to this litigation.

We think the jury was entitled to hear all the facts and circumstances connected with the entire transaction to determine whether or not the man who sold the scales was the agent of Fairbanks Morse & Company.

Taking all the facts and circumstances and the inferences to be drawn therefrom, we think that this was purely a case for the jury to pass upon. It is true that Fairbanks Morse & Company denied that the salesman was the agent, nevertheless, Dale & Company claimed that he was, so the contradiction presented a conflict of the testimony as to the material facts of agency along with the other testimony in the case tended to show the agency, and this question should have been submitted to the jury for its determination.

McCloskey Bros. v. Hud Milling Company, 80 So. 492.

The jury resolved and found this issue in favor of the appellees and, as we see it, rightfully so. This court has held in a great number of cases that the findings of fact by a jury will not be disturbed on appeal. This is clearly a case passed upon by the findings of the fact by jury under proper instruction of the court.

Morris v. St. Louis Railroad, 101 Miss. 568; Miss. Central Railroad v. Camel, 114 Miss. 803; Gunter v. Yazoo Railroad, 145 Miss. 475; St. Louis Railroad v. Bourn, 107 Miss. 97.

Argued orally by E. L. Trenholm, for appellant.

OPINION

Anderson, J.

Appellee, a mercantile company at Prentiss in Jefferson Davis county, brought this action of replevin in a court of a justice of the peace of that county against the Mississippi Central Railroad Company to recover a pair of scales. At the trial appellant Fairbanks Morse & Company intervened and claimed title and right of possession to the scales. By agreement the railroad company was eliminated from the case and Fairbanks Morse & Company substituted as defendant. The trial resulted in a judgment for appellee for the scales and damages in the sum of one hundred fifteen dollars and costs against Fairbanks Morse & Company. From that judgment Fairbanks Morse & Company appealed to the circuit court, where there was a trial de novo, resulting in a judgment in favor of appellee for the scales and damages in the sum of fifty dollars and costs against appellant Fairbanks Morse & Company and the surety on its appeal bond, United States Fidelity & Guaranty Company. From that judgment both Fairbanks Morse & Company and its surety prosecute this appeal.

There was little, if any, conflict in the material evidence. Dale &amp Company, as stated, was engaged in the mercantile business at Prentiss. Dewees Fixture Company was engaged in business in Jackson. Fairbanks Morse & Company, which for convenience will be referred to as the Fairbanks company, had its office for this territory in the city of New Orleans. One Steel was a traveling salesman for the Dewees Fixture Company; he solicited and received the order for the scales involved; he carried with him a Fairbanks company catalogue. The scales were selected by appellee from that catalogue. Steel and appellee both...