Sandwich Mfg. Co. v. Shiley

• Decision Date: 13 November 1883
• Citation: 17 N.W. 267,15 Neb. 109
• Parties: THE SANDWICH MANUFACTURING COMPANY, PLAINTIFF IN ERROR, v. SAMUEL L. SHILEY, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

17 N.W. 267

15 Neb. 109

THE SANDWICH MANUFACTURING COMPANY, PLAINTIFF IN ERROR, v. SAMUEL L. SHILEY, DEFENDANT IN ERROR

Supreme Court of Nebraska

November 13, 1883

ERROR to the district court for York county, where the cause had been brought on appeal from the county court. In 1881, Shiley bought of the Sandwich Manufacturing Company, through H. M Miller, the agent of said company, an Adams & French harvester. He gave his note in part payment and a second-hand Marsh harvester for the balance. This was sold by Miller to another party. The machine bought by Shiley was warranted but failed, and was returned by him and his notes delivered up but the company refused to return the second-hand machine and notified Shiley that it knew nothing about it and that he would have to look to Miller for the same as it did not recognize any trade Miller had made for old machines. Hence this action to recover its value as well as a sum paid by Shiley for freight on the machine purchased by him. Verdict below in county court for Shiley. Defendant company appealed to the district court where, on trial before GEORGE W. POST J., and a jury, verdict and judgment were in Shiley's favor.

AFFIRMED.

Scott & Frank, for plaintiff in error, cited: Nichols v. Hail, 4 Neb. 215. Ladd v. Hildebrandt, 27 Wis. 144. 3 Greenleaf, 429. 1 Wait's Actions and Defenses, 227.

Sedgwick & Power, for defendant in error, cited: Furnas v. Frankman, 6 Neb. 429. Story Agency, §§ 19, 126. Bloomer v. Denman, 12 Ill. 240. Doan v. Duncan, 17 Id., 272. 2 Kent Com., 621, et seq., and notes.

OPINION

COBB, J.

There can be no doubt of the correctness of the position of the counsel for plaintiff in error in their brief that the authority of Miller, the agent, to bind the plaintiff company was restricted to the sale of a certain kind of machine and did not extend to the purchase of an old one. But it is clearly proven that the said agent assuming to act for his principal did, in point of fact, take an old machine from the defendant in error in part payment for a new one purchased by defendant from plaintiff in error. It is also in proof that the said agent sold the old machine in the name of his principal and there is testimony tending to prove that the principal, plaintiff in error, accepted and appropriated the proceeds of such sale. The principal, though not bound by the acts of the agent outside of the scope of his agency, was nevertheless competent...