T.G. Bush Grocery Co. v. Conely

• Decision Date: 23 May 1911
• Citation: 55 So. 867,61 Fla. 131
• Parties: T. G. BUSH GROCERY CO. v. CONELY.
• Court: Florida Supreme Court

55 So. 867

61 Fla. 131

T. G. BUSH GROCERY CO. v. CONELY.

Florida Supreme Court, Division B.

May 23, 1911

Error to Circuit court, Jackson County; J. Emmet Wolfe, Judge.

Action by the T. G. Bush Grocery Company against T. W. Conely. Judgment for defendant, and plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Where a principal has by his voluntary act placed an agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform a particular act, and therefore deals with the agent the principal is estopped, as against such third person, from denying the agent's authority.

Whether or not an act is within the scope of an agent's apparent authority is to be determined, under the foregoing rule, as a question of fact, from all the circumstances of the transaction and the business.

Where one of two innocent persons must suffer for the wrongful act of a third, he who gave the power to do the wrong must bear the burden of the consequences.

If one holds another out to the world and accredits him as his agent, he is bound by that person's acts done within the scope of the agency thus given him. In such cases the question is, not what authority was intended to be given to the agent, but what authority was the third person dealing with him justified from the acts of the principal in believing was given to him.

COUNSEL

Paul Carter, for plaintiff in error.

Price &amp Lewis and C. L. Wilson, for defendant in error.

OPINION

PARKHILL J.

The plaintiff in error sued the defendant in error in the circuit court for Jackson county for goods, wares, and merchandise sold and delivered. Upon pleas of never was indebted payment, and release the jury returned a verdict for the defendant. Upon writ of error it is contended that the verdict is contrary to the evidence.

The evidence tended to show the plaintiff was a wholesale grocer in Mobile, Ala., and the defendant a retail dealer in Marianna, Fla. J. H. Parker was a traveling salesman for the plaintiff company. His authority was to sell goods at prices as instructed by the Bush Company. The plaintiff admitted that, while Parker had no specific authority to collect money due for goods sold by him, yet 'he did collect and we didn't object to it. We recognized his authority to collect by not objecting to it.'

Mr. Bush testified that Parker was not authorized to give rebates on the bills of goods sold, and the plaintiff had no actual knowledge that Parker was allowing rebates to the defendant. Mr. Bush admitted: 'Some goods were billed out subject to discount, which, of course, we allowed. * * * We allowed them for short payments--weekly payments, for instance.' The statements of Conely's account, as it appears by the bill of particulars filed with the declaration, show the Bush Company allowed Conely deductions, sometimes called 'discounts,' and other times called 'rebates,' ranging from 2 to 12 1/2 per cent., and these discounts or rebates were allowed upon 58 out of 125 purchases made by defendant from the plaintiff.

The first bill of goods in the account sued for was sold by Parker to the defendant on the 15th day of February, 1906, and Mr. Parker continued to sell to the defendant for the plaintiff during 1906, 1907, and 1908, and collected every few days the full amount due thereon less the rebate. The defendant made 125 payments within 156 weeks, as the statement of accounts in evidence shows. These bills were all receipted by Mr. Parker, except the last one, that the plaintiff testified he paid. The plaintiff sent statements of accounts for the goods at least every three months. The statements contained items of original entry and did not show rebates allowed.

A. P. Bush testified: 'We have books of account showing the account of the plaintiff with Conely. The charges correspond on our books with the bills on his books. The gross amount on his books correspond with the charges on our books. His books show all these bills settled. They show them settled by cash and rebates. J. H. Parker allowed him those rebates. At the time Parket quit us, we claimed a balance from Conely. We sent a man named J. P. Moore to sell goods. He is the man who receipted and signed these last bills. The exact amount of discounts is $367.10; the bill of November 19, 1908, $95.10, added, making a total of $462.20.'

The defendant made no response to statements sent him by the plaintiff. 'The remittance was not made direct to the house by Mr. Conely. Mr. Parker was the salesman at that time. He sold the goods and collected for them.' 'Mr. Parker was short cash with the plaintiff. The entire amount of his shortage was $2,900.'

The defendant testified that he bought the goods from J. H. Parker, representing T. G. Bush Grocery Company; that he paid Parker for the goods he bought. None of the bills are still unpaid. The defendant offered in evidence receipts for payment of goods bought. The bills were marked 'Paid,' and signed 'T. G. Bush Grocery Co.' The defendant testified that Mr. Parker told him he could meet terms on prices and wanted the business. The defendant would show prices from various places cheaper than Parker's, and Parker would say, 'I will meet those prices.' 'When the bill came, I paid each week. When I bought the goods I agreed on a certain price, and paid him according to that price. That is what made those discounts in the tobacco and snuff, and, the 60-day goods being paid promptly, I was allowed a 2 per cent. discount on snuff and things of that kind--on these accounts. At different times I suppose I did take off $367.10 discount. I got statements while I was doing business with the house. I spoke to Mr. Parker about it.'

We have only partially stated the testimony, but enough of...