Q. W. Loverin-Browne Co. v. Bank of Buffalo
| Citation | 75 N.W. 923,7 N.D. 569 |
| Decision Date | 27 May 1898 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; Pollock, J.
Action by the Q. W. Loverin-Browne Company against the Bank of Buffalo. From a judgment entered on a verdict directed for plaintiff, defendant appeals.
Affirmed.
Judgment affirmed, with costs.
J. W Tilly and S. G. More, for appellant.
Morrill & Engerud, for respondent.
Defendant bank appeals to this court from a directed verdict against it. The plaintiff corporation is a wholesale dealer in groceries at Chicago. On February 20, 1896, defendant received from plaintiff a telegram which read: "We guaranty payment of fifty dollars to C. E. Birdsall." The next communication between the parties was a letter from plaintiff to the defendant dated April 6, 1896, which reads as follows: Four days later plaintiff sent another letter to defendant, which reads: These collections were promptly made and remitted, and their receipt in full is acknowledged by plaintiff on April 21st. Other similar collections followed, including one for goods to be delivered at Ada, Minn. In remitting for that collection the defendant wrote plaintiff as follows: On same date defendant wrote to Mr. Birdsall as follows: The plaintiff promptly responded, denying all agency on the part of Birdsall, and all liability for any property purchased by him or accounts made by him in the capacity of agent, and demanded a remittance of the balance collected. Defendant refused to account for such balance, except as by its letter of June 5th, and plaintiff brought this action in November following to recover the balance in defendant's hands. In its answer, defendant alleges, on information and belief, that said Birdsall was the agent of plaintiff engaged in soliciting orders and selling goods for plaintiff, and was generally authorized by plaintiff to attend to its business in that line, and do all things for and in plaintiff's name in furtherance of that agency, and then declares that in May, 1896, at the solicitation and request of Birdsall, defendant sold and delivered to him a team, harness and buggy, and advanced him certain moneys, for and on behalf of plaintiff, with which to prosecute and attend to plaintiff's said business, in all of the value of $ 330; that said team was purchased by Birdsall on account of plaintiff, and as its agent, and procured said advances for plaintiff as its agent duly authorized, "and then and there agreed that plaintiff should and would pay defendant therefor; and the said Birdsall then and there further agreed to pay defendant said sum of $ 330 therefor out of the first moneys realized and received by him from the sale of plaintiff's said goods." On the trial plaintiff's general manager and plaintiff's bookkeeper testified, in substance, that Birdsall never was the agent for plaintiff, or authorized to act for it in any way; that plaintiff sent him a price list at which it would furnish goods to him; that he sold the goods at such prices as he saw proper; that when he had taken orders for goods he would send them to plaintiff, and plaintiff would fill the orders, and send the goods to such point as he might direct, when he would deliver the same to his customers, being responsible to plaintiff only for the price-list price thereof. Defendant sought to prove certain statements and acts of Mr. Birdsall as showing agency. This evidence was excluded on objection, and as it was not shown that such statements or acts were ever brought home to, or in any manner adopted by, plaintiff, the ruling was clearly right, on plain principles. Likewise the fact, if it were a fact, that plaintiff paid a certain livery bill incurred by Birdsall, was incompetent to establish agency. Defendant relies upon the telegram of February 20th, and the letters of plaintiff of April 6th and 10th, as sufficient to warrant it in regarding Birdsall as plaintiff's agent. By what process of reasoning it could have been supposed that such documents recognized him as an agent authorized to purchase a team, buggy, and harness, we cannot understand. As a matter of fact, they did not recognize him as an agent for any purpose. By the telegram the plaintiff made itself guarantor for Birdsall. That presupposed a primary liability on Birdsall's part, and notified the bank that it must deal with Birdsall as a principal, and with plaintiff as a guarantor, so far as the matter...
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