Saville, Somes & Co. v. Welch

• Decision Date: 18 August 1886
• Citation: 5 A. 491,58 Vt. 683
• Parties: SAVILLE, SOMES & CO. v. JACOB C. WELCH
• Court: Vermont Supreme Court

5 A. 491

58 Vt. 683

SAVILLE, SOMES & CO. v. JACOB C. WELCH

Supreme Court of Vermont, Caledonia County

August 18, 1886

Assumpsit. Heard on a referee's report, June Term, 1886 Ross, J., presiding. Judgment for the defendant. The master found: "One Wilson, then and now selling goods as travelling agent for Saville, Somes & Co., on the 19th of October, 1882, sold a bill of goods to J. C. Ide. A portion of this bill was to fall due in 30 days, which was paid by said J C. Ide when it fell due. The balance, which was a chest of tea, price $ 24.64, was due in four months, and is the matter in controversy in the suit. Wilson had sold J. C Ide goods prior to this date, but he was at that time owing Saville, Somes & Co. an unpaid judgment. July 18, 1882, J. C Ide had been put into insolvency by a petition returnable Aug. 6. 1882, and the case was ended by compromise on the 16th day of September, 1882. J. C. Ide told Wilson that he was selling for J. C. Welch, that he was doing business for J. C. Welch, the defendant, and that he bought some goods. From what was said Wilson understood from J. C. Ide that he was authorized to purchase merchandise for and pledge the credit of J. C. Welch, and had a right so to understand. Wilson sold the goods and entered the sale as to J. C. Welch and sent the order to his principals as an order from J. C. Welch. The goods were forwarded to Lyndon, to the address of J. C. Welch. There was some dispute about who took them from the freight house, but I find the facts from a strong preponderance of evidence, that J. C. Ide went to the station and inquired for an invoice of goods addressed to J. C. Welch, and told the station agent that they were for him, J. C. Ide, and took them away. In the mean time the bill or invoice of said goods had been sent to J. C. Welch, who, not understanding it, went to J. M. Weeks, a trader near him, and asked if he had ordered such a bill of goods, thinking that a mistake had been made in billing the goods. He learned that Weeks had not ordered the goods. Soon after J. C. Ide came in and asked Welch if he had received a bill of goods from Saville, Somes & Co., that he had ordered a bill in his, Welch's, name, fearing lest if ordered in his own name they might be attached; that he had received the goods and had them at his store and wanted the bill to mark them by. Welch gave Ide the bill. This all transpired very soon after the date of the sale. Welch did not then notify Saville, Somes & Co. that he had not authorized J. C. Ide to buy goods in his name." It also appeared, that, on June 6, 1882, said J. C. Ide had executed a chattel mortgage to H. C. Ide and J. C. Welch, which included the following: "My stock of merchandise including drugs and medicines contained in my store in the village of Lyndon now occupied by me, meaning hereby to include all goods I now have on hand as per inventory, and all goods hereafter purchased by me, to replenish the stock, hereby agreeing to keep said stock good; that is, in amount up to its present value." It was also found: "These goods having been taken possession of by the mortgagees, because of breach of condition of said mortgage, and having been duly advertised, were sold at auction on the 26th day of October, 1882. The goods were bid off by J. C. Welch; and it was agreed that J. C. Ide might do business, still retaining the goods in the name and under the style of J. C. Ide, Agent; and he ordered all his goods under this title after the auction sale. By agreement of J. C. Welch and H. C. Ide he was to act as their agent and account to them for his sales, and continued to do business in this way till Dec. 6, 1882, when the goods and uncollected accounts went into the hands of J. C. Welch and H. C. Ide. At no time did J. C. Welch and H. C. Ide authorize J. C. Ide to buy goods in their names or to pledge their credit except so far as this was done by authorizing him to do business and make purchases under the name of J. C. Ide, Agent. When Welch, on the 26th day of October, bought Ide's goods at auction, this chest of tea in controversy was entire, none having been sold. During the time that Ide was doing business under the style, J. C. Ide, Agent, one Stevens bought ten pounds of this tea, and after the taking of accounts by Welch, 6th of December, 1882, he, Welch, collected of Stevens the pay for this tea. Said Welch had the tea which remained unsold on 6th of December, having purchased it at the auction sale."

Affirmed.

Geo. W. & G. C. Cahoon, for the plaintiffs.

The goods were never sold to Ide and the title never vested in him. 1 Par. Con. 475; 1 Benj. Sales, 322, s. 309 note, s. 636. The plaintiffs then are the owners, unless the facts constitute an agency by ratification; and we insist that they do. Alexander v. Bank, 24 Vt. 222; Rob. Dig. 602. Upon an unquestioned state of facts, whether such facts operate a ratification is a question of law. Bank v. Fassett, 42 Vt. 439; Rob. Dig. 19. "If the principal accept, receive, and hold the proceeds or beneficial results of such a contract he will be estopped from denying an original authority on a ratification." 1 Par. Con. 49; Paley Agency, 249; Spooner v. Thompson, 48 Vt. 259. Welch did not disavow the acts of Ide when they came to his knowledge; he therefore made them his own. Paley Agency, 143; 2 Greenl. Ev. s. 66; Story Agency, ss. 95, 253; Knight v. Luce, 116 Mass. 586; Bank v. Fassett, 42 Vt. 438; Lindsley v. Malone, 23 Pa. St. 24; Brigham v. Peters, 1 Gray, 147. The title could not pass to defendant under the mortgage; because Ide could convey no interest in what he did not own. APPLETON, Ch. J., in Griffith v. Douglass, 73 Me. 532, 26 Alb. L. Jour. 210; Jones Ch. Mort. 138. Assumpsit will lie whether the court find an agency by ratification, or a conversion of the goods into money. Rob. Dig. 52. The reference cures any defects as to form of action. Granite Co. v. Farrar, 53 Vt. 587; Rob. Dig. 600; Laport v. Bacon, 48 Vt. 176; Briggs v. Oaks, 26 Vt. 138.

Harry Blodgett, for the defendant.

The defendant was under no legal obligation to give notice that he had not purchased the goods. White v. Langdon, 30 Vt. 599; Strong v. Ellsworth, 26 Vt. 366. There can be no ratification without knowledge of the facts. Spooner v. Thompson, 48 Vt. 259; Combs v. Scott, 12 Allen, 493; Owings v. Hull, 9 Pet. 607; Hovey v. Brown, 59 N.H. 114. The purchase at the auction sale was not a ratification. Hastings v. Bangor House, 18 Me. 436. There must be full knowledge or there is no ratification. 29 Am. Dec. 554. White v. Davidson, 8 Md. 169; Story Agency, s. 256; Whar. Ag. s. 86; Busby v. Ins. Co. 40 Md. 588. Assumpsit will not lie. Burnap v. Partridge, 3 Vt. 144; Kidney v. Persons, 41 Vt. 387; Starns v. Dillingham, 22 Vt. 624; Phelps v. Conant, 30 Vt. 277; Elwell v. Martin, 32 Vt. 220; Scott v. Lance, 21 Vt. 513.

OPINION

VEAZEY, J.

Under the transaction between the plaintiffs and Ide the title to the tea remained in the plaintiffs. They did not sell to Ide but were led to suppose by Ide's fraud that they sold to Welch. But there was no sale to him because he did not authorize Ide to buy for him. The plaintiffs, however, have brought assumpsit against Welch and claim to recover on the ground that he ratified the unauthorized act of Ide. This claim falls because Welch did not know the goods were bought on his credit. Subsequently to the transaction Welch received a bill of the goods from the plaintiffs, as he supposed by mistake, but was soon told by Ide that he had ordered in his, Welch's, name, fearing lest if ordered in his own name the goods might be attached, and and that he had received the goods and wanted the bill, and took it. He said nothing about buying on Welch's credit or that the goods were not paid for. Welch was notified of nothing that he was called upon to disavow. Strong v. Ellsworth, 26 Vt. 366; White v. Langdon, 30 Vt. 599. The only fault alleged is that he was silent when he ought to have spoken. One sufficient answer is that he had no...