N. Friedman & Sons v. Kelly.

• Decision Date: 28 May 1907
• Court: Missouri Court of Appeals
• Parties: N. FRIEDMAN & SONS v. KELLY.

102 S.W. 1066

126 Mo. A. 279

N. FRIEDMAN & SONS v. KELLY.

St. Louis Court of Appeals. Missouri.

May 28, 1907.

1. APPEAL—QUESTIONS REVIEWABLE.

When an issue of fact is submitted without instructions, and there is substantial evidence to support the judgment, it will not be reviewed.

2. PRINCIPAL AND AGENT—TRAVELING SALESMAN—IMPLIED AUTHORITY.

A traveling salesman could not, without authority so to do or custom of trade in that behalf, obligate his principal on the sale of goods by an agreement that any portion of the goods might be returned before the date of settlement, even though the season for the sale by his principal of such goods to the retail trade had expired for the year at that time.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by N. Friedman & Sons against John A. Kelly. Judgment for plaintiff, and defendant appeals. Affirmed.

Frank A. Hobein, Cornelius F. Bauer, and Vital W. Garesche, for appellant. Henry M. Furth, for respondent.

NORTONI, J.

This case involves the apparent authority of an agent, a traveling salesman. The only question worthy of note is whether or not a traveling salesman may obligate his principal, as within the scope of his apparent authority, by a positive agreement or contract in connection with a sale of goods, which agreement or contract is entirely beyond his express authority, and is not an ordinary or usual contract, comporting with any custom or usage of the trade; or, in other words, is an extraordinary and unusual agreement, when measured by custom or usage of the trade in which he is engaged, and so known to be by the parties. The suit is on an account stated for the value of a bill of ladies' coats or cloaks, sold by plaintiffs to defendant. The material facts in evidence disclose the plaintiffs to be manufacturers of ladies' cloaks in the city of St. Louis. The defendant is a retail merchant, located at Waukegan, Ill. About June 1, 1904, plaintiffs' traveling salesman, one John Gately, called upon defendant at his place of business and sought to sell him a bill of cloaks. The defendant stated he did not care to purchase from a St. Louis house. Gately insisted upon showing his line of goods, and the parties adjourned to the hotel, where Gately exhibited his samples and represented to the defendant that, inasmuch as his samples were being handled daily, the cloaks which he would receive upon purchase would, in fact, show better, etc.; that all of the cloaks over a certain price would be lined with Skinner satin, which lining was guarantied to wear two seasons, and each would be supplied with a slip sewed inside of the coat containing the words, "Skinner Satin Lining." The defendant finally purchased a bill of some several hundred dollars in value, to be paid for on or before December 1st, with 7 per cent. off for cash, if paid by December 10th. The traveling salesman stated repeatedly to defendant that if the goods were not in all respects as he represented them to be, or if for any cause defendant found that he could not sell the goods, he might return all or any portion of them to the plaintiff on or before December 10th, and receive credit for them. We might say here it is abundantly established in the evidence that the traveling salesman had authority to make the representation as to the Skinner satin lining and the two years guaranty, but had no express authority for making the statement or to contract that, if for any reason the defendant could not sell the goods, he might return all or any part of them to the plaintiff on or before December 10th, and receive credit therefor. And in this connection it is proper to state that the traveling salesman did not notify the plaintiffs at any time that he had made, or had attempted to make, any such agreement with the defendant. In due course the cloaks were shipped to and received by defendant. After receiving the same it is shown on the part of defendant the cloaks were not in all respects as represented by the traveling salesman, in that the seams in the backs of some of them were crooked, and none of them had the slip sewed inside thereof signifying Skinner satin lining. The defendant placed the cloaks in his stock, and made no complaint thereabout at the time. It is shown that the only communication passing between the parties was a couple of letters or post cards some weeks later, whereby defendant made a special order for one additional cloak, without any complaint respecting those theretofore received by him. It appears, however, that Gately, the traveling salesman, called at defendant's store several weeks thereafter, in August, about the time or soon after he was discharged by plaintiff, and that defendant complained to him about the cloaks. They looked them over, whereupon Gately requested the defendant to keep them, make no complaint, and to sell them if he could. On October 26th the defendant, after selling some and selecting certain others of the cloaks which he desired to retain in his stock, packed the remainder and shipped them to defendant at St. Louis. The same day he rendered an account to them by mail, whereby he charged himself with such cloaks as he had retained, credited such as he had returned, and inclosed a draft to cover the invoice price of those not returned. This statement of account and draft was mailed to plaintiffs without any letter of explanation, or assigning any reason for his action thereon other than the following indorsement on the bottom of the account: "This firm sold out. [Signed] Kelly Bargain Store." Upon receipt of this communication, plaintiffs passed the draft to defendant's credit, and notified him promptly by wire that they would not receive the goods, and he had better recall them at once. On the same day plaintiffs wrote the defendant to the effect they could not receive the goods, would expect payment promptly when the bill was due, and further saying: "We have been in business a good many years, but we have never seen any one who keeps goods for months in his store, and then returns them at the end of the season. * * * You do not even offer any explanation why these goods are returned." On the same day, upon receipt of plaintiffs' telegram, defendant answered by letter, in part, as follows: "Your jackets are not as Mr. Gately sold the goods. This we can prove, and regret we cannot accept the goods only as sold." On November 4th plaintiff answered: "We certainly do not know what you are driving at. If these goods were not satisfactory or in any way up to sample, you should have returned them immediately on receipt, not months after you had them. We know absolutely no reason why these goods were returned, and we will not accept them. It seems very strange to us that, if you had any reason why you returned them that you do not state it. The only thing you say is that they are not as Mr. Gately sold them. If such is the case, why did you not return them at once?" On November 11th plaintiffs wrote defendant that the case of goods had been proffered to them on that date by the railroad company, but they had declined to accept them, and further said: "Under no condition will we accept the goods because you sold out your business. That is none of our affairs what you do. As soon as the bill is due, we will expect you to pay it. * * * No business man with common sense would think that after keeping goods a few months he could send them back at the end of the season for no reason whatever." On November 12th the defendant replied: "We positively will not accept the goods as they are not as ordered, and would have sent the entire lot only the case was not large enough. The goods did not have the guaranty that the sample called for, so you can take any steps you want, as we have proof that the goods were not in any way up to sample." After the account became due, defendant further declining to pay the same, plaintiffs instituted this suit by attachment, and caused the writ to be levied upon the parcel of goods returned, as property of defendant, which goods were then in the custody of the railroad company. The attachment was sustained, and the goods sold thereunder by an officer.

The issues on the merits of the case were tried before the circuit court without a jury, and it is that trial with which we are now concerned. In the circuit court plaintiff made a prima facie case by proving the sale and delivery of the goods and their value, whereupon defendant assumed the burden of showing the goods were not as warranted, etc., and that under his contract with the traveling salesman he had the right to return the same to the plaintiff at any time prior to December 10th, according to his theory, whether they fulfilled the warranty or not. To quote from his testimony, he had the right to return all or any part of the goods by the 10th day of December "if the garments would not be satisfactory, or if the styles should change." And from other portions it appears that it was agreed he could return the goods for any or no reason. It appears the manager of defendant's store was one Gately, a brother of the traveling salesman, and, besides the defendant, his manager, and the saleslady testifying to this contract, John Gately, the traveling salesman himself, who sold the goods, gave evidence to the same effect on the part of defendant. He said of the agreement: "I told Mr. Kelly that, if he would take these coats, we would take back all or any of them on or before December 10th, but not later." It appears that John Gately had been in the employ of plaintiffs from January 1st only of that year, a period of about six months, and neither he nor the plaintiffs' firm had ever sold goods to this defendant prior to that transaction, and that Gately was discharged from the plaintiffs' service about August or September of that year. His testimony manifests a friendly spirit toward the defendant, to say the least, and, although he gave positive evidence to the...