Janney v. Boyd

• Decision Date: 20 March 1883
• Citation: 15 N.W. 308,30 Minn. 319
• Parties: JANNEY AND ANOTHER v BOYD.
• Court: Minnesota Supreme Court

30 Minn. 319

15 N.W. 308

JANNEY AND ANOTHERvBOYD.

Supreme Court of Minnesota.

Filed March 20, 1883.

Appeal from order of district court, county of Stearns, denying motion for new trial, etc.

G. R. Robinson and D. B. Searle, for appellants.

L. W. Collins, for respondent.

BERRY, J.

Action for the price of merchandise sold defendant by plaintiffs, a Minneapolis firm. Defense, that defendant paid the price to one Moles, the plaintiffs' agent, duly authorized to receive it. Defendant, by letter, requested Moles to “have sent” to him the merchandise, and Moles handed the order to plaintiffs, who filled it and transmitted their bill to defendant. When the order was sent to Moles and by him handed to plaintiffs, he was a “commercial traveler” for a Chicago house, but not for plaintiffs. To prove Moles' authority to receive payment, defendant asked him to state what a commercial traveler was, and his manner of doing business. The question was allowed, against plaintiffs' objection that it was irrelevant and immaterial. The answer was that a commercial traveler “is agent or partner in a house doing a wholesale business. They travel, soliciting business from persons in the same line of goods as they are. These orders are sometimes transmitted or given by them direct, and sometimes carried in by agents. They frequently receive orders for goods which are not sold by the houses they represent. Such orders are handed to other houses by the house the agent represents, or by the agent in person.” Defendant next asked Moles, “What is the usage among commercial travelers and the houses they represent as to the payment for these goods?” Plaintiffs objected to the question as incompetent, irrelevant, and immaterial, but the objection was overruled, and the witness answered that “Payments are received by the commercial travelers.”

As an inquiry merely preliminary to some pertinent inquiry to follow it, the first question was proper, so far as the plaintiffs' objections were concerned. But the second question was clearly immaterial, and should have been excluded. Moles was not the commercial traveler of the plaintiffs, and he did not represent their house as such. The plaintiffs' case was that of a house for which Moles (a commercial traveler for a Chicago house) took an order without representing it. The usage of commercial travelers, and of the houses which they represent, unless it was also the usage of houses for which such travelers take orders without representing them, was, therefore, manifestly unimportant and immaterial, and as the answer tended to prejudice plaintiffs, substantially there must be a new trial.

With reference to a future trial, and to objections subsequently appearing in the settled case, we observe that a usage to be binding, simply as such,...