Hayes v. Colby

• Decision Date: 26 July 1889
• Citation: 65 N.H. 192,18 A. 251
• Parties: HAYES v. COLBY.
• Court: New Hampshire Supreme Court

18 A. 251

65 N.H. 192

HAYES

v. COLBY.

Supreme Court of New Hampshire. Sullivan.

July 26, 1889.

Assumpsit for cigars. Facts found by the court: R. A. St. Clair, agent for plaintiff, who deals in cigars, and resides in Lowell, called on defendant and solicited trade. He had authority only to take orders for cigars. Defendant knew that he was plaintiff's agent, but did not know the extent or limit of his authority. Defendant delivered to St Clair $35 worth of hosiery, for which St. Clair agreed that plaintiff should send him the cigars in question. St. Clair sent an order to plaintiff for the cigars, not informing him of the contract with defendant, or that he had received pay for them. Plaintiff forwarded the cigars, and defendant received and sold them in the usual course of business to his customers.

A. S. Wait, for plaintiff. G. R. Broum, for defendant.

CLARK, J. The defendant knew that he was dealing with an agent, but did not know the extent of his authority. There is no evidence of previous dealings or holding out by the plaintiff, or of any facts that would lead the defendant to believe that the agent's authority exceeded that ordinarily incident to the business of a soliciting agent to take orders for goods to be after wards delivered by the plaintiff. The agent did not have the goods in his possession, and no circumstances are shown that would indicate that he was authorized to receive payment for goods which he could not deliver. And if the defendant had reasonable cause for believing that he was dealing with an agent authorized to make sales and receive payment, he had no reasonable cause for believing that the agent was authorized to exchange the plaintiff's goods for hosiery, or to receive payment in anything but money. The plaintiff did not hold him out as having that authority, and it is not implied from ordinary business usages. An authority of an agent to sell goods is not an authority to exchange them in barter. Organ Co. v. Starkey, 59 N. H. 142. The trade being unauthorized by the plaintiff, there was no sale of the goods; but the defendant having received them, and sold and converted them into money, the plaintiff can maintain an action for money had and received for the avails, or he may maintain trover for the conversion of the property, and, the goods having been sold, no previous demand is necessary. White v. Brooks, 43 N. H. 402; Gould y. Blodgett, 61 N. H. 115. Upon making such amendment at the trial term as may be...