Gould v. Cates Chair Co.

• Decision Date: 30 June 1906
• Citation: 41 So. 675,147 Ala. 629
• Parties: GOULD v. CATES CHAIR CO.
• Court: Alabama Supreme Court

41 So. 675

147 Ala. 629

GOULD v. CATES CHAIR CO.

Supreme Court of Alabama

June 30, 1906

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

"To be officially reported."

Action by the Cates Chair Company against A. L. Gould. From a judgment for plaintiff, defendant appeals. Affirmed.

The defendant interposed several pleas--the first being the general issue; the second, plea of tender of $33.42; the third, a plea of set-off for damages growing out of the breach of the contract between the parties in the sum of $48.67; and the fourth was the plea of set-off for damages for breach of contract, expressed in somewhat different terms, except as to the amount of damages, and coupled with it an offer or tender of the difference between the amount claimed to be due and the amount claimed as damages for breach of the contract, which is alleged to be $33.42, and which sum was paid into court. The facts sufficiently appear in the opinion, except the order referred to, which is in words and figures as follows: "Order No. _____ 9/2/1903. Cates Chair Co., Shipped to A. L. Gould, at Mobile Ala. How ship, _____. When, _____. Terms: 10 & 5 off 60. 30 doz. No. 25 chairs, $6.75. 3 doz. No. 26 R. chairs, $9.00. Ship 10 doz. chairs and 2 doz, rockers on order of 4/11, and 10 doz. chairs and 2 doz. rockers 30, 60, and 90 to complete this and back order. [ Signed] J. L. Smathers."

Fitts &amp Stoutz, for appellant.

Hamilton & Thornton, for appellee.

DENSON J.

There are many grounds in the assignment of errors, which, on account of undisputed facts in the case, it will not be necessary for us to consider. The plaintiff was a corporation in the state of North Carolina, doing business as a manufacturer and seller of chairs. It had in its employ one Smathers as a traveling salesman of its products. Smathers in April, 1903, in the course of his employment as such salesman, took from the defendant, who was engaged in the furniture business in Mobile, Ala., an order for a bill of chairs amounting to $270. This order stipulated that the chairs were to be shipped in installments. It was forwarded by Smathers to the plaintiff. It is conceded that the plaintiff accepted this order and made shipment on it of all the chairs stipulated for in it. It was also conceded by the plaintiff that the defendant had, before the commencement of this suit, paid all that was to be paid on the order except $90. The defendant contended that by reason of discounts agreed to be allowed he owed only $81, and the verdict of the jury is in accord with this contention. So that, so far as the amount due on the plaintiff's claim is concerned, if there was error in the rulings of the court on the admissibility of evidence to support plaintiff's claim, certainly it was not prejudicial to the appellant.

But the defendant pleaded a set-off. His contention on the trial was that on the 2d day of September, 1903, he gave to Smathers, the salesman of plaintiff, an order for chairs; that the plaintiff received the order, but never shipped the chairs, and declined to do so. Defendant insisted that this order, when given to Smathers, was a completed contract, binding plaintiff to ship the chairs, and the plaintiff breached it. The defendant contends that, after Smathers received his last order, chairs such as were specified in the order advanced in price, and he, on account of plaintiff not shipping the chairs on the last order, was damaged in the sum of $48.67; that being the difference between the price named in the order and the price when the order, according to his insistence, should have been filled. At the conclusion of defendant's evidence the court, on motion of the plaintiff, excluded all of the evidence offered by the defendant, and at the request of the plaintiff in writing charged the jury, if they believed the evidence, they should find a verdict for the plaintiff. The question for consideration, in connection with defendant's contention, involves the authority of the salesman and its extent. The plaintiff's contention in this respect was, and is, that Smathers was only a soliciting agent, and that orders taken by him were never binding on it until they were approved and accepted by plaintiff. The witness Cates testified (and it was competent evidence under Bensberg v. Harris, 46 Mo.App. 404) that Smathers was plaintiff's traveling salesman, with authority to take orders on commission subject to plaintiff's approval. In the case of Simon & Son v. Johnson, 101 Ala. 368, 13 So. 491, one phase of the authority of a traveling salesman was considered and determined by this court; the precise question there determined being that a traveling salesman of merchandise, making sales by sample on a credit or for cash to be paid on receipt of the goods or the invoice of them, has no implied authority to collect the money agreed to be paid from the purchaser.

The precise question presented by this record has not been determined by this court. In the case of Clough v. Whitcomb an order was taken for goods by a salesman having authority similar to that with which the salesman in this case was clothed. The trial court charged the jury: "If Clark (the salesman) made the contract with the defendant for the goods, and the plaintiff agreed to give Clark a commission on said goods, then Clark was his agent to sell said goods." The appellate court, in holding the instruction bad, said: "A commission allowed to one who solicits orders upon sales effected through such orders does not constitute him or prove him to be an agent with authority to make absolute contracts of sale." Clough v. Whitcomb, 105 Mass. 482; Bensberg v. Harris, 46 Mo.App. 404; Finch v. Mansfield, 97 Mass. 89; Burbank v. McDuffee, 65 Me. 135. So in this instance Smathers "did not sell the goods, or even contract to sell them. When the defendant had...