Golson v. Ebert

• Decision Date: 31 March 1873
• Citation: 52 Mo. 260
• Parties: EUSTACE F. GOLSON, et al., Appellants, v. ELLIS B. EBERT, Respondent.
• Court: Missouri Supreme Court

52 Mo. 260

EUSTACE F. GOLSON, et al., Appellants,

v.ELLIS B. EBERT, Respondent.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Moss and Sherzer, for Appellants.

I. In cases of general agency, a principal is bound, though the agent disobeys his instructions in making a contract within the scope of his employment. (Story on Agency, §§ 126, 127; Butler vs. Maples, 9 Wal., 766; Pickering vs. Busk, 15 East, 37; Gilman vs. Robinson, 1 Ry. & Mod., 226; Winter vs. Pacific R. R. Co., 41 Mo., 503.)

II. Plaintiff's Instruction, No. 5, directed the attention of the jury to the testimony introduced in evidence, in determining whether or not such general agency existed, and should have been given. (McDevitt vs. Pacific R. R. Co., 50 Mo., 302; Fitzgerald vs. Hayward, 50 Mo., 516; Sawyer vs. Han. & St. J. R. R. Co., 37 Mo., 240; Clark vs. Hammerle, 27 Mo., 55.)

III. Instructions, Nos. 1 and 2, given by the court, are errone ous. 1st, In that they neglect, and fail to present the vital distinction between an agent vested with general, and one with limited authority in binding the principal, whose instructions he may have disobeyed or transcended. 2nd, In that they leave the question of agency to be solved by inference and conjecture. 3rd, In that they had a direct tendency to mislead the jury and left them to all the latitude of inference. 4th, In that they were too general and abstract, and might mislead the jury. 5th, In that, taking the two instructions together, it would seem that the agent must have been in fact authorized to make said contract. (McDermott vs. Donegan, 44 Mo., 85; Mead vs. Brotherton, 30 Mo., 201; Chappell vs. Allen, 38 Mo., 213.)

IV. Defendant's Instruction No. 2 was wrong, in that it fails to distinguish between the obligations of principal, flowing from a general agency, when instructions are disobeyed, and was calculated to mislead. (Chappell vs. Allen, 38 Mo., 213, 221-2; Fitzgerald vs. Hayward, 50 Mo., 516, 523.)

V Defendant's 3rd Instruction is the law, even in respect to orders. (Biggs vs. Lawrence, 3 Term R., 454, 456, Tertt vs. Bartlett, 21 Vt., 184, 187, 191; Backman vs. Wright, 27 Vt. 187, 189; Backman vs. Mussey, 31 Vt., 547, 551; Albion Co. vs. Mills, 3 Wil. & Shaw, 218-233.)

VI. The law where the contract is to be performed, governs as to its validity. (Story on Conflict Laws, p. 432, §§ 280, 242, p. 367 § 242; Andrews vs. Pond, 13 Peters, U.S., 65-78; Penobscot & Ken. R. R. vs. Bartlett, 12 Gray, 244-248; Hall vs. Costello, 48 N. H., 176-179; Ruse vs. Mutual Benefit Life Ins. Co., 23 N. Y., 516-521.)

The approval of the contract being its ratification, it was even in its making a Louisiana contract, and its validity to be determined by her laws. (Story on Conflict of Laws, § 286; Story n Conflict Laws, § 244, p. 288.)

VII. Testimony tending to discredit plaintiff's financial standing, was wholly irrelevant. (Eddy vs. Baldwin, 32 M., 369-374; Blair vs. Corby, 29 Mo., 480-486.)

Noble & Hunter, for Respondent.

The question is what power a third person dealing with an agent, had a right to infer from the conduct of the principal that the agent possessed. (Johnson vs. Jones, 4 Barb. Sup. Crt., 399-373; 1 Am. L. Caus. p. 550.)

VORIES, Judge, delivered the opinion of the court.

Plaintiffs charge that they were partners doing business in New Orleans, Louisiana, in the name of F. Golson & Co., that defendant and one Spotswood were doing business in St Louis under the name of E. B. Ebert & Co., that on or about the 26th of April, 1870, in said city of New Orleans, said Ebert & Co., by their authorized agent contracted and agreed with plaintiffs to furnish them, 300 rolls and 50 half rolls (Douglass bagging,) at the price of 24 1-2 cents per pound, to weigh 2 1-8 lbs. to the yard, and to be as good in every respect as a sample there exhibited by said agent, and to be delivered to plaintiffs in said city of New Orleans on the 15th day of July, 1870, which plaintiffs agreed to pay for on delivery, by the acceptances of plaintiffs, payable four months after dat That before the time for the delivery of the bagging by the t of the contract, the price of bagging advanced rapidly at defendant failed and refused to deliver the bagging, although requested thereto, and the pay therefor was tendered as per contract, for which failure damages are claimed, &c.

The defendant, by his answer, denies the making of the contract charged, by their duly authorized agent, for said quantity of bagging, or for any bagging, or for any price or upon any terms whatever, and denies every material allegation in the petition, except he does not deny that he was requested to, but refused to perform the contract.

A trial was had before a jury, and there the plaintiffs read in evidence the deposition of E. F. Golson, (one of the plaintiffs,) by which the contract as stated in the petition, was fully proved. It was also testified to in said deposition, that Stringfellow, with whom the contract was made, was the agent of defendant, that witness knew he was the agent by having dealt with him before, and that in said dealings defendants had recognized him as such, and acted upon and performed the contracts of Stringfellow as such agent. It was also stated in said deposition, that upon defendant's business cards Stringfellow's name appeared as an agent. This evidence in the deposition in reference to the card was stricken from the deposition by the court, as being incompetent and irrelevant, and plaintiff excepted. Said deposition also showed, that long after the contract made with said Stringfellow, the said Stringfellow still professed to be the agent of defendant to sell bagging, and offered to sell plaintiffs more bagging, but at an advanced price. That he was acting as agent of defendants in Texas and other Southern States, and at New Orleans, &c. The said deposition also contained a statement, that the witness, some months after the contract was made, had a conversation with said Stringfellow, in which he stated that “he had notified defendant of the contract made with plaintiffs, and that defendant's firm would “come to time.” This was also stricken out as being irrelevant and incompetent, and the plaintiffs excepted. It was also stated in said deposition, that about a month after the making of the contract sued on, plaintiffs wrote a letter to said Ebert & Co., in which plaintiffs expressed the hope that defendants would find it convenient to deliver at least a part of the bagging prior to the 15th of July, 1870. That in reply Ebert, & Co., stated “that on the terms of your order as to price, &c., they could not fill,” and quoted the price of bagging in the west, but in said letter, plaintiffs were not informed, whether said Ebert, & Co., were or were not dealers in bagging. This part of said deposition was also stricken out by the court, on the ground that it was also irrelevant and incompetent. The plaintiffs' again excepted.

The plaintiffs also introduced the deposition of one Chism, by which the price of bagging was proved in July, 1870, and with which deposition there was an exhibit filed, proved by said deposition to be a price current issued at New Orleans at said time. This price current was rejected as evidence by the court, as being incompetent and irrelevant, and the plaintiff again excepted.

The deposition of William F. Tutt was read, by which it was proved that he was dealing in bagging in th city of New Orleans in July, 1870--that 30 cents was the wholesale and 32 cents the retail or jobbing price of bagging in the New Orleans market at that time, that witness' knowledge of prices i derived from actual sales; that he did not at all times regard the price current of New Orleans as the authority for prices of bagging. The deposition of one Micaw was also introduced, which proved that the deponent was present in New Orleans at plaintiffs' office, and heard plaintiffs demand of String fellow, the supposed agent, the bagging named in the contract, that Stringfellow replied that he did not have the bagging, and walked out of the office.

The deposition of E. G. Crews was introduced, in which it was stated that he was a merchant, belonged to the firm E. G Crews & Son, was in general grocery business at Montgomery, Alabama, had the first transaction with Ebert & Co., of St. Louis, through W.R. Stringfellow who represented himself as agent selling goods for Ebert & Co.,--bought a car load of bran from Stringfellow on thirty days' time, in Nov., 1869.--Stringfellow first introduced deponent to a business relation with Ebert & Co. Said contract was final and unconditional, and was not subject to the approval of Ebert & Co. Said Ebert & Co. complied with said contract by shipping the bran bought. Stringfellow held himself out as the general agent for Ebert & Co. to sell goods. That the usage of trade amongst merchants is to sell and purchase bagging and manufactured articles at from two to four months' time. It was also proved, that prior to the making of the contract sued on, plaintiffs had bought corn of defendants through their agent, Stringfellow, and that the contract was filled by Ebert & Co. without question, and that said Stringfellow had, before and about that time, been in the habit of making sales of provisions and other commodities at New Orleans and other places in the south, and that the orders so taken and contracted for, were filled and performed by defendants without objection; that the purchase of the bagging was made unconditionally, without any reference to its being approved by the defendants or any other person.

The depositions of several witnesses were read, which tended to prove that said Stringfellow was the recognized agent of Ebert & Co., sold large quantities of goods at Jefferson, Texas, to divers persons, consisting of bagging, flour, bacon and other commodities; that some of the sales made by Stringfellow, as the agent of defendants, were on credit, and that th...