Pownall v. Bair
| Decision Date | 11 October 1875 |
| Citation | 78 Pa. 403 |
| Parties | Pownall <I>versus</I> Bair. |
| Court | Pennsylvania Supreme Court |
Before AGNEW, C. J., SHARSWOOD, MERCUR, PAXSON and WOODWARD, JJ.
Error to the Court of Common Pleas of Lancaster county: Of May Term 1875, No. 7.
P. D. Baker, for plaintiff in error.—If an agent by gross unskilfulness or gross negligence injures his principal he will be liable in damages, and will also lose his commissions: Story on Agency 409, 419, pl. 331, 333. Under the common counts and the plea of non-assumpsit defendant may, without notice, give in evidence anything which shows that the plaintiff ought not ex æquo et bono to recover: Gaw v. Walcott, 10 Barr 43; Beals v. See, Id. 57. An agent is liable for loss occasioned by a sub-agent: Broun v. Arrott, 6 W. & S. 421; Clark v. Bank of Wheeling, 5 Harris 322.
J. B. Amwake (with whom was W. A. Wilson), for defendant in error.—The defence could be sustained only under the plea of payment with notice: Heck v. Shener, 4 S. & R. 258.
Abraham Bair, the plaintiff below, entered into an agreement in the spring of 1869 with George Pownall, the defendant, who was the agent for the sale of mowing and reaping machines manufactured by the firm of Dodge, Stevens & Co., of Auburn, in the state of New York. The general agent was Brinton Walter, from whom Pownall's authority to sell had been derived. The arrangement between Bair and Pownall was, that for each machine sold Bair should retain a commission of $12.50. In pursuance of the agreement, Bair disposed of four machines, and this suit was brought to recover $50, the commissions claimed upon those sales. On the trial, it was alleged by the defendant, and evidence was given to show, that one machine was sold to Henry Wertz, whom the plaintiff knew to be insolvent. After Wertz had used it for two years, this machine was taken back at a loss of $105. The question in the court below was as to the measure of the damages which, under the facts alleged on his behalf, the defendant could set up against the plaintiff's claim. The sale to Wertz was held to be a breach of the plaintiff's duty under his contract, and the jury were instructed, if they found the facts as the defendant asserted them, to defalk as damages a single commission of $12.50, the amount to which the plaintiff would have been entitled for a single sale. The court held that the defence could not reach to the residue of the plaintiff's claim.
In view of the verdict, the facts in the cause may for present purposes be assumed. The improvident sale by the plaintiff to Wertz involved a loss of $105. There was evidence that the defendant, in his running account with Walter, was responsible for that loss. The relation of principal and agent, so far as these transactions were concerned, was confined exclusively to these parties. The loss sustained was the direct result of the plaintiff's reckless negligence. Under such circumstances, the rule that confined the allowance of damages to the commission on the sale of a single machine was entirely too narrow and restricted. It was a general contract into which the parties had entered, and it was a general authority with which the plaintiff had been invested. His powers were not limited to a single transaction or a single series of transactions. He had undertaken to act for the defendant in the general sale of the machines upon certain specific terms; and the law imposed upon him the duty of acting with adequate care and prudence. Violating this duty, he became responsible to his principal for damages equal in amount to the loss caused by his delinquency. It is a doctrine of the text-books that if an agent "shut his eyes against the light, or sell to a person without inquiry, when ordinary diligence would have enabled him to learn the discredit or insolvency of the party, he will not be discharged from responsibility to his principal:" Story's Agency, § 186. "If he unnecessarily exceeds his...
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Glennon v. Lebanon Mfg. Co
...could be proved as a defence in reduction of the plaintiff's demand: Leech v. Baldwin, 5 W. 449; Heck v. Shener, 4 S. & R. 249; Pownall v. Bair, 78 Pa. 403; Blessing Miller, 102 Pa. 45; Gaw v. Wolcott, 10 Pa. 43; Hunt v. Gilmore, 59 Pa. 450; Nickle v. Baldwin, 4 W. & S. 290; Shoup v. Shoup,......
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