McKindly v. Dunham

• Decision Date: 10 October 1882
• Citation: 55 Wis. 515,13 N.W. 485
• Parties: MCKINDLY AND OTHERS v. DUNHAM.
• Court: Wisconsin Supreme Court

55 Wis. 515

13 N.W. 485

MCKINDLY AND OTHERS

v.DUNHAM.

Supreme Court of Wisconsin.

Filed October 10, 1882.

Appeal from circuit court, Green Lake county.

Geo. D. Waring, for appellants.

W. W. D. Turner, for respondent.

ORTON, J.

A short time before August 11, 1879, one W. L. Kilbourn called upon the defendant at Berlin, Wisconsin, exhibited the cards of the plaintiffs' house in Chicago, and solicited and obtained from the defendant an order for 1,000 cigars of a certain brand upon and sent the same to the plaintiffs, and the plaintiffs on that day shipped the cigars and sent the bill thereof, of $30 at 60 days, to, and they were duly received by, the defendant. About 30 days thereafter the said Kilbourn called upon the defendant and asked him “if he would just as soon pay him for those cigars as not,” and the defendant replied “that he would as soon pay it then as any other time,” and paid the same, and said Kilbourn receipted the original bill produced by the defendant in the firm name of the plaintiffs by himself. Kilbourn's real authority as agent of the plaintiffs was to solicit from country merchants orders on them for goods, and if such orders were accepted and filled Kilbourn was entitled to a small commission thereon. We have no evidence of what the terms of this order were, and are left to presume that it was a mere order or request by the defendant to the plaintiffs for 1,000 cigars, and perhaps at a certain price. The main question in the case is the authority of Kilbourn to receive payment of this bill. There is no proof of numerous or indeed of any other acts done by this agent of this character, with the express or tacit consent of the plaintiffs, or of any general habits of dealing or of any other transaction between these parties of any kind, or that the real scope of his authority beyond what appeared was disclosed at this time. There is nothing besides this one transaction from which his authority and the full scope of his authority can be implied or inferred. It is his apparent or ostensible authority in this one act to do another act of the same kind, and nothing more.

The only question here is, what was his apparent or ostensible authority in this one act? “His implied agency cannot be construed to extend beyond the obvious purposes for which it was apparently created.” “The intention of the parties, deduced from the nature and circumstances of this particular case, constitutes the true ground of exposition of the extent of his authority.” Story, Ag. § 87; Wright v. Hood, 49 Wis. 235; [S. C. 5 N. W. REP. 488.] A principal is responsible for any act of his agent which justifies a party dealing with him in believing that he has given the agent his authority to do such act, (1 Parsons, Cont. 44; Kasson v. Noltner, 43 Wis. 647;) or, as Pothier says, “if the agent does not exceed the power with which he was ostensibly invested.” This agent did not appear or pretend to have any other authority from the plaintiff than to solicit orders for goods, and send them to the plaintiffs. This is all he did in this case, and all he pretended he had authority to do. In this he could not possibly do his principal any harm. To this extent they authorized him and trusted him; but they might not have been willing to trust him further with the large and dangerous power of receiving payments, and they did not, so far as is possible to infer from this transaction. But it is said by the learned counsel for the respondent the agent Kilbourn sold the goods to the defendant, and in this power to sell is implied the further power to receive the consideration or payment therefor, and the learned judge of the circuit court in effect so charged the jury, as follows: “Presumptively, Mr. Dunham had the right to pay this bill to the person from whom he purchased the goods,” (meaning Kilbourn, the agent;) and again: “The plaintiffs sending the goods to Dunham upon that sale or order, presumptively Kilbourn had the right to collect that debt.” If what Kilbourn did could properly be called a sale of the goods, even then this instruction is questionable as an abstract statement of the law; for it does not always, as a general rule, follow that the power to collect the moneys upon them is included in the power of an agent to make contracts for his principal. Story, Ag. § 98; Higgins v. Moore, 34 N. Y. 417;Mynn v. Joliffe, 1 Moody & R. 326. But the agent did not sell the goods, or even contract to sell them. When the defendant had completed his transaction with Kilbourn, there had been no binding contract made, or any sale, absolute or conditional. The defendant could have countermanded his order at any time before the goods were shipped, and the plaintiffs could have refused to accept the order. Neither party had become bound by anything then done. The order of the defendant was a mere proposal, to be accepted or not, as the plaintiffs might see fit, and he could have withdrawn it before its acceptance. The minds of the parties had not met, and there had been no mutual assent or aggregatio mentium. Benj. Sales, §§ 40, 70; Johnson v. Pilkington, 39 Wis. 62. Even as a broker (and he was less rather than more in the authority he exercised in this instance) he need not even see to the delivery of the goods, (Story, Sales, § 85;) and if his negotiation had been broken off, and the contract not finally completed, he would not be entitled to his commissions. Story, Sales, § 86.

As is said in Higgins v. Moore, supra: “The duty of a broker, in general, is ended when he has found a purchaser and has brought the parties together. He is a mere negotiator or middle-man between the seller and purchaser.” It is only in cases where the broker has possession of the goods that he can sell, and in that case, even, if he parts with the securities he receives on the sale to his principal, his implied authority to receive payment, if he had any, ceases with their possession. Strachan v. Micklow, 24 Wis. 1. Aside from the clear and obvious reason from the general principles of bargain and sale, and principal and agent, why Kilbourn was not authorized to receive payment as the agent of the plaintiffs in this case, the four following cases, all of them closely analogous, and two of them precisely parallel, are abundant authority:...