Smith v. Droubay

• Citation: 58 P. 1112,20 Utah 443
• Court: Supreme Court of Utah
• Decision Date: 14 November 1899
• Parties: M. E. SMITH, G. M. TIBBS AND W. D. SMITH, CO-PARTNERS, APPELLANTS, v. PETER A. DROUBAY, RESPONDENT

58 P. 1112

20 Utah 443

M. E. SMITH, G. M. TIBBS AND W. D. SMITH, CO-PARTNERS, APPELLANTS, v. PETER A. DROUBAY, RESPONDENT

Supreme Court of Utah

November 14, 1899

Re-hearing denied.

Appeal from the Third District Court, Tooele County, Hon. A. N Cherry, Judge.

Action upon account for goods, sold and delivered. Defendant cross complained and alleged damages by reason of the failure and neglect of plaintiff to ship and deliver the goods in accordance with the terms of purchase.

At the trial the court found the issue raised by the cross complaint in favor of the defendant, awarded him a certain sum in damages, off-set the same against the amount due the plaintiffs and rendered judgment in their favor for the balance. From this judgment plaintiffs appealed.

Affirmed.

Messrs Booth, Lee & Ritchie and William S. Marks, Esq., for appellants.

The law defining the authority of commercial travelers is thus laid down:

"The scope of commercial traveler's authority is well defined, and, as a general rule, extends only to the soliciting of orders for goods." 6 Am. & Eng. Ency. of Law, 2 ed., 224, and authorities there cited. Law v. Stokes, 32 N. J. L. 249; McKindly v. Dunham, 55 Wis. 515; Clark v. Smith, 88 Ill. 298.

"The purchaser from a commercial agent is bound to ascertain the agent's powers and in the absence of actual authority, the agent's statement that he had authority, is not binding upon the principals. The purchaser has no right to act on anything that did not proceed from the principals, either as actual authority or in some form of binding admission."

6 Am. & Eng. Ency. of Law 224, note 4, citing the following cases: Holland v. Van Beil, 89 Ga. 223; Greenwood v. Keator, 89 Ill.App. 183; Kornemann v. Monaghan, 24 Mich. 36; Chambers v. Short, 79 Mo. 207.

Even though appellants themselves had agreed to deliver the goods in Tooele by August 17, Droubay waived the condition:

1. By his letter of Sept. 11.

2. By receiving the goods when they arrived.

3. By appropriating and using them and uttering no complaint as to the alleged delay or damage, which he later discovered he had suffered, when asked to pay the bill.

If the time of delivery was a condition of the sale, he should have refused to receive the goods when they did come. Benj. Sales, (6 Am. Ed.) Secs. 858, 901, 911 and note; 21 Am. & Eng. Ency. 647, p. and note 4.

Under the law applicable to sales in accordance with commercial usage without a special contract, delivery of goods to a common carrier is equivalent to a delivery to the buyer himself. In this case when M. E. Smith & Co., received the order in usual course August 10, 1897, and filled it so far as in their power by delivery of the goods the next day to the P. & M. R. Railroad consigned, as the bill of lading shows, to Peter A. Droubay, they delivered the shipment to him, and if he had any complaint on account of delays, he should have pursued the railroad company. That such is the law governing such sales the authorities all agree. 1 Benj. on Sales, 6 Am. Ed., Secs. 181, 1040; 2 Schouler on Personal Prop., 2 Ed., Sec. 396; 21 Am. & Eng. Ency. of Law 497, and cases cited in note 1, of which the following are a part: Fragano v. Long, 4 B. & C. 219, 10 E. C. L. 313; Meredith v. Meigh, 2 E. & B. 364, 75 E. C. L. 363; Dutton v. Solomonson, 3 B. & P. 582; King v. Meredith, 2 Camp. 639; Cork Distilleries Co. v. Great Southern, etc., R. Co., L. R. 7 H. L. 269; Wiss v. McMahon, Longf. & T. 192; Waite v. Baker, 2 Exch. 1; Dawes v. Peck, 8 T. R. 330; London, etc., R. Co. v. Bartlett, 7 H. & M. 400; Johnson v. Lancashire, etc., R. Co., 3 C. P. Div. 499.

L. L. Baker, Esq., for respondent.

While it may be true in general that a traveling salesman can only take orders, yet it is unquestioned that the principal will be bound by the acts of the salesman within the apparent scope of the agent's authority. 6 Am. & Eng. Ency. of Law, 2 Ed. 224; Babcock v. Delford, 14 Kan. 313.

To the same effect see Keith v. Herschberg Optical Co., 48 Ark. 138; Talmage v. Bierhouse, et al., 103 Ind. 270; Murray v. Brooks, et al., 41 Iowa 45; Mabray et al, v. Kelly-Goodfellow Shoe Co., 73 Mo.App. 1; Mechem on Agency, Sec. 362; Greer v. First National Bank, 47 S.W. 1045; Holt v. Schneider, et al, 77 N.W. 1086.

Did Droubay waive the time feature of the agreement by the acceptance of the goods?

As was said in a similar case, (Halstead Lumber Co. v. Sutton, 26 P. 444):

"It was the duty of the defendants to make the injury as light as possible by taking and using the material upon its arrival." Detroit Heating & L. Co. v. Stevens, 16 Utah 177.

BARTCH, C. J. BASKIN, J., concurs. MINER, J., dissenting.

OPINION

BARTCH, C. J.

The plaintiffs, as a co-partnership, under the name of M. E. Smith & Co., were wholesale dry goods dealers in Omaha, Nebraska, and brought this action upon an account for goods sold and delivered. The defendant, who was a retail merchant in this state, filed a cross-complaint wherein, among other things, it was alleged that the purchase of the goods which caused this controversy, was made August 5, 1897, through the plaintiffs' duly authorized agent and salesman; that at the time of the sale the agent expressly agreed that all of the goods would be delivered to the defendant in Tooele City, Utah within twelve days from the date of sale; that the goods were not shipped according to agreement, and some of them were never shipped; and that because of the failure and neglect of the plaintiffs to ship and deliver the goods in accordance with the terms of purchase, and of the failure to ship some of them at all, the defendant was damaged in the loss of trade and profits. At the trial the issues raised by the cross-complaint were found substantially in favor of the defendant, and the court awarded him a certain sum in damages, offset the same against the amount due the plaintiffs, and rendered judgment in their favor for the balance. From this judgment the plaintiffs appealed.

The court, among other things, found "That on the 5th day of August, 1897, the plaintiff acting through its agent, W. R. Butler, sold to the defendant goods and merchandise of the value of about $ 665.00;" also "that it was agreed by the plaintiff's agent W. R. Butler, and the defendant prior to, and at the time said goods and merchandise were sold, that the same would be shipped from Omaha so as to reach Salt Lake City, Utah for delivery to defendant within twelve days from said date of sale or on or before August 17, 1897; and that said agreement was considered by the parties before the sale, and was an express condition of the contract of sale."

It is contended, on behalf of the appellants, that the evidence is insufficient to justify these findings of fact. We do not regard this contention as well founded. Without referring to the testimony in detail, an examination of it shows that there is evidence in the record which supports the findings, and although there is some conflict, still the proof is not such as would warrant this court in interfering, with the action of the trial court, on this point.

It is further insisted, however, that W. R. Butler, who is characterized, in the findings, as the agent of the appellants, had no authority to make a sale, or to make a contract, respecting the time of delivery of the goods, which would bind his principals.

Whatever authority may have been conferred upon him by his principals, the court found "that at all times hereinafter mentioned W. R. Butler, was the duly authorized and acting agent and salesman for M. E. Smith & Co. for the State of Utah" and the correctness of this finding does not appear to be challenged. Admitedly, therefore, Butler was the agent and representative, in this state, of the co-partnership, and there is nothing to show that the respondent, at any time before the sale had any notice of any limitations or restrictions upon the powers of the agent. Under these circumstances, the agent must be regarded as having all the powers incident to his employment, and the respondent had the right to deal with him upon that basis. If, therefore, the power to take an order, or make a contract for the sale of goods, is an incident to the agents employment, which must be so to give the agency any efficacy whatever, we see no good reason why the power to fix the time for the delivery of the goods should not likewise be an incident to such employment, and come within the scope of his authority.

Certainly the time for the delivery of goods may and, doubtless, often is of the utmost importance to the purchaser to prevent loss of custom, and consequent failure in business, through delay on the part of the seller. It is true that any order for goods, so taken by a salesman, may be and probably is only a conditional contract, not binding upon the principal until acceptance. While this may be conceded, still the agent may make any contract, within the apparent scope of his authority, and when the principal accepts it he is bound by its terms. Therefore, as the appellants received the contract from their agent for the sale of the goods, without notice to the purchaser of a refusal to comply with some of its conditions, and acted upon it, by shipping a portion of the goods, they must be held to have accepted the contract as a whole, including the conditions, as to the time of delivery, and as to the delivery of all the goods, which were attached to the sale.

So far as the respondent knew, Butler had apparently general authority to contract for a sale of the goods. It is true that the testimony of the appellants tends to show that there were private limitations imposed upon his powers, but these were never communicated to the respondent prior to the sale. In such case the...