John Stember & Co. v. Keene

• Citation: 152 S.W. 661
• Parties: JOHN STEMBER & CO. v. KEENE.
• Decision Date: 19 December 1912
• Court: Court of Appeals of Texas

152 S.W. 661

JOHN STEMBER & CO. v. KEENE.

Court of Civil Appeals of Texas. Texarkana.

December 19, 1912.

Appeal from Tarrant County Court; R. E. Bratton, Judge.

Action by John Stember & Co. against D. H. Keene. From a judgment for plaintiff for less than the relief demanded, he appeals. Reversed and rendered in favor of plaintiff for the full amount sued for.

Wray & Mayer, of Ft. Worth, for appellant. McLean & Scott, of Ft. Worth, for appellee.

HODGES, J.

The appellant sued the appellee in the justice court on a verified account amounting to $149.92 for merchandise sold and delivered. Appellee admitted the purchase of the goods and the correctness of the account as stated, but pleaded payment, or tender of payment, according to the terms of a contract which he claims was made by him with the appellant's agent at the time the order for the goods was given. Appellant recovered a judgment for $30.04 in both the justice and county courts. It now appeals, and claims that the court should have rendered a judgment in its favor for the full amount sued for.

Keene, the appellee, testified that in the year 1909, or the early part of 1910, one Seigel, the traveling salesman for the appellant, sold him a bill of merchandise, for which he promptly paid. In November, 1910, this same traveling salesman came into his place of business and solicited another order for ladies' leather bags, and told Keene, if he would purchase the bags, Stember & Co. would take back the old merchandise previously purchased and paid for, amounting to about $100 and would give credit for its value on the purchase price of the bill then solicited. The negotiations resulted in Keene's giving the salesman an order for goods to the amount of $149.12, which were shipped about November 21, 1910. After receiving them, Keene boxed and shipped the old bags, amounting to $119.88 in value, and sent them by freight to appellant, and tendered his check for $30.04, the difference, in payment. Stember & Co. refused to accept the check or to receive the goods. Mrs. Keene corroborated her husband in his statement. Seigel denied that any such agreement was ever had by him with Keene, and says that he made the sale, or took the order, upon the usual terms, allowing a discount for cash to be paid within stipulated dates.

The correctness of the judgment rendered in this case can be sustained only on the assumption that Keene was entitled to the privilege of returning the old goods previously purchased from appellant, and of receiving credit therefor on the bill for the purchase made upon this occasion. The burden of establishing such a right devolved upon Keene. He relies exclusively upon the agreement which he says he made with appellant's traveling salesman. The general rule seems to be that one who relies upon the agency of one party for the purpose of binding a third has the burden of proving, not only the fact of agency, but the extent of the agent's authority. Tomkins Machinery, etc., Co. v. Peter, 84 Tex. 627, 19 S. W. 860; Baker & Co. v. Kellett-Chatham Machine Co., 84 S. W. 661; 31 Cyc. 1322, and cases cited in the notes. Of course,...