Nofsinger v. Ring

• Decision Date: 31 October 1879
• Citation: 71 Mo. 149
• Parties: NOFSINGER et al., Appellants, v. RING.
• Court: Missouri Supreme Court

71 Mo. 149

NOFSINGER et al., Appellants,

v.RING.

Supreme Court of Missouri.

October Term, 1879.

Appeal from St. Louis Court of Appeals.

REVERSED.

John K. Cravens for appellants, cited Gaylord Manufacturing Co. v. Allen, 53 N. Y. 515; Dutchess Co. v. Harding, 49 N. Y. 321; Stevens v. Mackay, 40 Mo. 224; Graff v. Foster, 67 Mo. 512.

Jas. O. Broadhead and Valle Reyburn for respondent.

McCullough was but a special agent. The acts of a special agent must be strictly within the scope of his agency. Story Agency, (3 Ed.) § 126, p. 144, Rossiter v. Rossiter, 8 Wend. 494. East India Co. v. Hensley, 1 Esp. 111; Pursleyv. Morrison, 7 Ind. 356. It is the duty of the party dealing with a special agent to ascertain and know the extend of his powers. 49 N. Y. 455; Smith v. Tracy, 36 N. Y. 79. Nixon v. Palmer, 4 Seld. 398; Sage v. Sherman, Lalor 149; Beals v. Allen, 18 Johns. 363.

HOUGH, J.

This was a suit to recover the difference between the contract price and market price at the time and place of delivery of sundry boxes of meat packed by the plaintiffs for the defendant, and delivered to him under a certain contract of sale, which meat the defendant failed and refused to accept. The defendant admitted the contract of sale and his refusal to accept the meat delivered, and alleged, as a reason for his refusal, that the meat tendered did not conform to the requirements of the contract. The contract, which was entered into on the 22nd day of August, 1872, called for 500 boxes long boneless (long clear) middles, to average not less than fifty-two pounds each middle, and 500 boxes short boneless (short clear) middles, to average not less than forty-two pounds each middle, both lots at six and three-quarter cents per net pound of meat, delivery to be made at Kansas City, Mo., on board cars, at the option of the sellers, during the month of December, 1872, and to be paid for in cash on delivery; the above meat to be cured, cut, trimmed and packed according to the requirements of the New York standard for long and short boneless (clear) middles.

On the 20th day of December, 1872, the plaintiffs notified the defendant that they were ready to begin delivering the meat under their contract. Thereupon it was arranged between the parties that the meat should be inspected before it was delivered on board the cars, and one James McCullough, a professional inspector of meat, was employed by the defendant to see that the meat offered by the plaintiff under his contract was properly cut, cured, trimmed boxed and weighed. The plaintiffs were notified of his ection as inspector, and were directed to ship the middles to John H. Pool, New York City, whenever they received McCullough's certificate that they were according to contract. McCullough inspected the meat, gave the required certificate to the plaintiffs, and the meat was put upon the cars. Upon receiving from McCullough a description of the meat inspected by him and shipped by the plaintiffs, the defendant, Ring, wrote the plaintiffs, declining to accept the same, for the reason that it did not come up to the requirements of the contract. The plaintiffs retained the meat and sold it, and brought this action to recover the difference between the contract price and the market price at the time and place of delivery. The plaintiffs had judgment...