Ismert-Hincke Milling Co. v. Natchez Baking Co

• Citation: 86 So. 588,124 Miss. 205
• Decision Date: 13 December 1920
• Docket Number: 21360
• Court: United States State Supreme Court of Mississippi
• Parties: ISMERT-HINCKE MILLING CO. v. NATCHEZ BAKING CO

86 So. 588

124 Miss. 205

ISMERT-HINCKE MILLING CO. v. NATCHEZ BAKING CO

No. 21360

Supreme Court of Mississippi

December 13, 1920

October 1920

1. PRINCIPAL AND AGENT. Agent can bind principal only within agent's powers; duty to ascertain agent's authority stated. An agent can only bind his principal when acting within the scope of his powers; and persons dealing with the agent must know his powers and the scope and limit thereof.

2 EVIDENCE. Principal and agent. Stipulation that no agreements not embodied in order are binding is valid.

A party has a right to embody a stipulation in a written contract that no agreements not therein contained shall be binding and a person buying from an agent on written order, subject to the approval of the principal, must see that the writing signed contains all the agreements, where such stipulation is contained in a written order, and verbal agreements of the agent in such case cannot be proven in a suit to enforce the contract.

HON. R E. JACKSON, Judge.

APPEAL from circuit court of Adams county, HON. R. E. JACKSON Judge.

Action by the Ismert-Hincke Milling Company against the Natchez Baking Company. Verdict and judgment for defendant, and plaintiff appeals. Reversed, and judgment rendered for plaintiff.

Judgment reversed.

Reed, Brandon & Bowman, for appellant.

This is a case in which only fundamental principals of law are involved and in which it is unnecessary to cite legal authorities. The whole case rests upon the question as to whether or not the contract in this case was the one sent into the main office and there confirmed; and whether or not it was error to permit the introduction by appellee of the duplicate order left with him, which contained representations not placed upon the original order, which went into the main office for confirmation, and whether or not it was error to permit testimony showing that J. H. Kirk, an employee of appellant made certain representations or warranties not contained in the original order. Our contention is that appellant cannot be bound by any representation or warranties not included in the original order submitted to them for confirmation.

We submit that there is only one contract in this case and it is either the original contract introduced in evidence by appellant or it is the duplicate contract introduced in evidence by appellee and we think it needs no arguments as to which of these documents really constitute the contract. If it is the original as sent into the main office for confirmation, then it must prevail, and the duplicate order held by appellee with the words "old wheat" inserted and which was unconfirmed by the main office has no place in this case and should not have been admitted in evidence.

This duplicate order retained by appellee was nothing more than a memorandum showing that he had placed an order for a car of flour from appellant. It was not a contract until approved by the main office of appellant. If either he or the salesman saw fit to make some additions to this memorandum, or duplicate order, and omit the same from the original document which had to go into the main office for acceptance, that was something for which appellant cannot be held responsible. It was within the full knowledge of appellee that his order was not to become a contract until approved, and it was also within his knowledge and that this original order did not contain the words "old wheat," because he looked up the salesman after its execution and had the words "old wheat" inserted in the duplicate order. If he had a right to do this, why didn't he have the right to change the price in the duplicate order to one-half of what it was in the original and by the same process of reasoning hold appellant to the price as changed. This was the very thing appellant was guarding against by making it mandatory that the order was signed by and approved by the main office before it became a contract. Such a plan was a fair one to appellant and a safe one to appellee.

Our contention is that the duplicate order amounted to nothing and should be ignored, and that the only binding obligation resting upon appellant was contained in the contract which went in for their confirmation, and having fulfilled that contract, they are entitled to recover the amount due thereunder.

Ratliff & Kennedy, for appellee.

The evidence shows conclusively that the salesman, Kirk, wrote "old wheat" on the duplicate original, which was left with the baking company. It strikes us as being too plain a proposition for argument that the baking company was entitled to old wheat flour both because the sale to it was of old wheat flour, the order held by it specified old wheat flour, and the price paid by it was the price of old wheat flour.

But the appellant contends that the order was subject to confirmation and the only order, or contract between the parties, was that one which was confirmed by the milling company. The milling company confirmed the order by letter and did not purport to set out all the terms of the purchase. Mr. Simon, for the baking company, took no steps to see that the salesman, Kirk, sent into the milling company a correct order.

We submit to the court that Mr. Simon of the baking company took every precaution that any reasonably prudent business man would have taken; he called on the salesman within a very short time after the order was signed, called his attention to the error in the order and had it corrected. It cannot be said that it was the duty of Mr. Simon to see that the proper order went in to the milling company from the salesman for the reason that the salesman is the agent to the milling company, and is sent around to see the trade for the purpose of transacting business for the milling company, and to take orders for the milling company. Counsel for appellant contends that the purchaser should see to it that the order as per the duplicate original left with him was transmitted to the milling company, and to hold to the contrary would open up endless grounds for fraud. Counsel says that the salesman and the purchaser could enter into certain agreements and put certain things on the order left with the buyer, and leave them off the order sent into the house, and, thereby defraud the wholesale milling company. We submit to the court that if such a fraud should be perpetrated it would be thru the instrumentality of the salesman, who is the agent of the milling company, and that the milling company should sustain the loss, if any. However, no such fraud, or misrepresentation, is shown in the case at bar, but on the contrary it is shown that the buyer bought old wheat flour and agreed to pay the market price for old wheat flour, and the milling company is now trying to get two dollars per barrel in excess of the market price for their new wheat flour and thereby profit from the neglect of their own agent.

Upon the question of fraud let us see what the rule contended for by appellant would lead to. Appellant contends that it is the law that the order which the salesman forwards to the house and not the one which leaves with the buyer should control. Suppose that the salesman, Kirk, in the case at bar had placed upon his original order after it had been signed by Simon and just before he mailed it in to the milling company, an extra item of two hundred and ten barrels of flour, or any other item which he might choose to place thereon. Could it be the law that the buyer, Simon, would be forced to take the four hundred twenty barrels of flour when he had not bought it, nor signed an order for it, but merely because the salesman had sent the house such an order? It would certainly be to...