McCaskey Register Co. v. Swor

• Citation: 154 Miss. 396,122 So. 489
• Decision Date: 20 May 1929
• Docket Number: 27708
• Court: United States State Supreme Court of Mississippi
• Parties: MCCASKEY REGISTER CO. v. SWOR et al

122 So. 489

154 Miss. 396

MCCASKEY REGISTER CO. v. SWOR et al

No. 27708

Supreme Court of Mississippi

May 20, 1929

(Division B.)

1. PRINCIPAL AND AGENT. Defendants, setting up novation agreed to by plaintiff's traveling salesman, must prove such salesman was expressly authorized to make new contract or acted within apparent scope of authority.

In action to recover balance of purchase price of cash register defendants could not defend on ground that there had been novation of obligation by terms of which plaintiffs, through traveling salesman, had released defendants from obligation and accepted in their stead one purchasing business from defendants, without proving that plaintiff's traveling salesman, in making new contract, was either expressly authorized so to do by plaintiff or was acting within apparent scope of his authority.

2. PRINCIPAL AND AGENT. Traveling salesman has authority only to solicit orders and transmit them to principal for approval.

A traveling salesman or "drummer" has authority only to solicit orders and transmit them to his principal for approval, unless expressly authorized to do other acts.

3. PRINCIPAL AND AGENT. Agent's authority cannot be proved by agent's statements.

Authority of an agent cannot be proved by mere statement of agent.

ON SUGGESTION OF ERROR.

Division B

APPEAL from circuit court of Smith county.

HON. W L. CRANFORD, Judge.

Action by the McCaskey Register Company against C. S. Swor and another. From a judgment for defendants, plaintiff appeals. Reversed and rendered.

Judgment reversed. Suggestion of error overruled.

Welch & Cooper, of Laurel, for appellant.

It is elementary law that one who alleges agency or that the act of an agent is binding on a principal, must establish the agency.

Becker v. Clardy, 51 So. 211; Cape County Savings Bank et al. v. Gwin-Lewis Grocery Company, 86 So. 275.

ANDERSON, J. GRIFFITH, J.

OPINION

ANDERSON, J.

Appellant brought this action in the circuit court of Smith county against appellees to recover the balance of the purchase price of a cash register theretofore sold by appellant to appellees. The trial resulted in a verdict and judgment for appellees, from which judgment appellant prosecutes this appeal.

Appellees defended the action upon the ground that there had been a novation of the obligation sued on, by the terms of which novation appellant had released appellees from the obligation and accepted in their stead one G. C. Stringer. To establish that defense, the evidence tended to show the following facts:

Appellees were doing business at Mize, under the name of Mize Motor Company, and brought from appellant, through its traveling salesman, M. J. McCool, a cash register. The sale contract was evidenced by a written order signed by appellees, which order recited that it was subject to the approval of appellant, and a note for the purchase money. Some months after the purchase of the cash register, appellees sold out the business of the Mize Motor Company to G. C. Stringer, and among the assets sold to Stringer was the cash register in question. It was agreed between appellees and Stringer that the latter would pay appellant the balance due on the cash register, and this agreement was a part of the consideration which Stringer agreed to pay appellees for the business and assets of the Mize Motor Company. Something like ten or fifteen days after that sale and transfer had taken place, M. J. McCool, traveling salesman of the appellant, appeared at Mize, and was informed as to the sale of the business of the Mize Motor Company to Stringer and the terms of the sale, including the fact that Stringer had agreed to pay appellant the balance due on the cash register. McCool agreed to the new arrangement and promised to have appellant cancel and surrender to appellees their note for the unpaid purchase money, as well as the written order for the cash register. Appellant refused to confirm the novation made by McCool; on the contrary, it repudiated it by bringing this action.

The evidence showed that McCool was a mere traveling salesman, soliciting orders for cash registers for appellant, subject to its approval. It devolved upon appellees to show by evidence that McCool in making the new contract was either expressly authorized so to do by appellant, or was acting within the apparent...