Simon v. Johnson

• Decision Date: 14 June 1893
• Citation: 13 So. 491,101 Ala. 368
• Parties: SIMON ET AL. v. JOHNSON.
• Court: Alabama Supreme Court

13 So. 491

101 Ala. 368

SIMON ET AL. v. JOHNSON.

Supreme Court of Alabama

June 14, 1893

Appeal from circuit court, Geneva county; J. M. Carmichael, Judge.

Assumpsit counting on the general counts, by J. Simon & Son against J J. Johnson. Judgment for defendant. Plaintiffs appeal. Reversed.

The plaintiffs introduced in evidence a verified account. The defendant testified in his own behalf that he bought the goods contained in the verified statement of plaintiff's account from one J. B. Carlisle, who was a drummer for plaintiffs; that he arranged with said Carlisle to discount said bill at 8 per cent. upon receipt of invoice, and that it had been his (defendant's) custom for 8 or 10 years to pay drummers for goods bought from them, and it was the custom of the merchants in Geneva to pay drummers the money for goods bought from them; that he had never bought but one bill before this one from the plaintiffs, and did not remember whether he paid the drummer, or remitted direct to the plaintiffs; and that he paid the present bill, less the discount, to the said Carlisle, and took Carlisle's receipt in full for the same, and wrote to the plaintiffs at once that he had paid the amount due them to said Carlisle and that he did not think plaintiffs replied to said letter. The plaintiffs objected to the proof of the custom of the merchants of Geneva, "unless he first proved that it was the custom of J. Simon & Son to allow their drummers to collect for goods sold in Geneva." The court overruled this objection, and the plaintiffs duly excepted. The plaintiffs further objected to said proof on the ground that the time proven was not long enough to constitute a custom or usage. The court also overruled this objection, and plaintiffs duly excepted. In rebuttal, the plaintiffs introduced testimony to the effect that, on the receipt of Johnson's letter, they immediately wrote him that Carlisle was not authorized to collect the amount due on said account, and that his receipt would not be recognized. Upon the introduction of all the evidence, the plaintiffs requested, among other written charges, the following "If the jury believe the evidence, they will find for the plaintiffs." The court refused to give this, as well as other charges requested by the plaintiffs, and to the refusal to give each of them the plaintiffs separately excepted.

J. J. Morris and W. D. Roberts, for appellants.

M. E. Milligan, for appellee.

McCLELLAN J.

The decided weight of authority-indeed, well-nigh all the adjudged cases-supports the proposition that a traveling salesman of merchandise, making sales by sample on a credit or for cash, to be paid on receipt of the goods or the invoice of them, has no implied authority to collect the money agreed to be paid from the purchaser. 2 Amer. & Eng Enc. Law, p. 355, and notes; Kane v. Barstow, 42 Kan. 465, 22 P. 588, 16 Amer. St. Rep. 490, and note on page 494; McKindly v. Dunham, 55 Wis. 515, 13 N.W. 485; Kohn v. Washer, 64 Tex. 131; Butler v. Dorman, 68 Mo. 298; Law v. Stokes, 90 Amer. Dec. 655; Kornemann v. Monaghan, 24 Mich. 36; Clark v. Smith, 88 Ill. 298; Higgins v. Moore, 34 N.Y. 417; Greenleaf v. Egan, 30 Minn. 316, 15 N.W. 254; Seiple v. Irwin, 30 Pa. St. 513. The particular facts of the Maine case relied on by counsel for appellee prevent it from being an authority against the proposition just stated. The opinion in that case, indeed, recognizes the soundness of the rule declared in Higgins v. Moore and McKindly v. Dunham, supra, and, in effect, bases the conclusion that payment was well made to the agent, mainly, if not entirely, on the facts that the "agent assumed to complete a contract of sale, specific in terms, stipulating that payment was to be made to himself," and that, "after the goods had been delivered, he presented for payment a bill, made upon a genuine 'billhead' of his principal." Neither of these facts is in the present case or was involved in the cases cited. Without committing ourselves to the effect accorded them by the Maine court, it is readily conceivable that there is much reason for according them an important influence in shaping the conclusion reached. Trainer v. Morison, 78 Me. 160, 3 A. 185. The Vermont case, relied on by the appellee, involved the sale by one Allen, who was in fact a traveling salesman for plaintiff's firm, but who represented himself to be a member of the partnership, and, upon that representation, made the contract of sale with the defendants. This contract embodied a stipulation that defendants should pay Allen for the goods when he should come to their city on his next trip, in about three months; and the decision is based on this express stipulation for payment to Allen, in connection with the consideration that defendants had...