Wellford & Withers v. Arnold

• Decision Date: 14 March 1932
• Docket Number: 29866
• Citation: 140 So. 220,162 Miss. 786
• Parties: WELLFORD & WITHERS v. ARNOLD et al
• Court: Mississippi Supreme Court

140 So. 220

162 Miss. 786

WELLFORD & WITHERS v. ARNOLD et al

No. 29866

Supreme Court of Mississippi

March 14, 1932

Division B

1. APPEAL AND ERROR.

On issue whether appellant's request for directed verdict should have been granted, appellate court treats as proved every material fact favorable to appellees' defense which evidence showed directly or by reasonable inference.

2 SALES.

Evidence that buyer paid for petroleum oil through arrangement that seller's salesman should pay therefor thereby canceling salesman's indebtedness to one of buyers, held insufficient to take issue to jury.

3. PRINCIPAL AND AGENT.

Agent can only bind principal when acting within real or apparent scope of authority.

4. PRINCIPAL AND AGENT.

Persons dealing with agent must know his powers and scope and limit thereof.

5 EVIDENCE.

Terms of written contract stipulating that writing contains entire contract cannot be changed by showing other parol arrangements were made by agent on execution of contract.

6. PRINCIPAL AND AGENT. Even if sellers could have bound themselves by parol to charge to salesman goods sold instead of to buyer, seller's mere silence on receiving notice from salesman of such agreement held, not tantamount to such agreement. Seller's mere silence, when their salesman notified them of arrangement whereby goods should be charged to salesman instead of to buyer, did not give consent to arrangement in view of fact that sellers immediately shipped goods to buyers, sending them invoice showing that goods were charged to buyers, and for several months thereafter sent buyers monthly statements of account demanding payment of goods, thereby unmistakably repudiating salesman's agreement.

7. ESTOPPEL. Buyers, by written order for goods and subsequent silence, held estopped from setting up parol agreement with salesman as defense to seller's action for price. Buyers were estopped to set up as defense agreement with seller's salesman that salesman would pay for goods sold to buyers and thereby repay salesman's indebtedness to one of buyers, since buyers on receiving invoice showing goods were charged to them instead of to salesman were required at once to notify sellers of contract with salesman and offer to return goods if sellers were not willing to carry out contract, and before signing written order buyers should have erased provision that no verbal agreement would be recognized, and should have inserted therein agreement with salesman that goods should be charged to him and not to buyers, and, having failed to do so, sellers were entitled to accept the order as written.

8. PRINCIPAL AND AGENT. That on two other occasions sellers charged salesman's account with small amounts credited to buyer's account held not to establish course of dealing authorizing buyers to assume salesman had authority to make similar agreement involving much larger sum.

This was especially true in view of the fact that buyers signing order for large amount of petroleum products had before their eyes the signed written order which expressly excluded any parol agreement.

9. SALES. In seller's action on open account for price of goods sold and delivered, admitting in evidence, over buyer's objection, order for goods held' not error (Code 1930, section 526).

The admission of such order was not error in action on open account for goods sold and delivered, because provision of written contract in question was merely incidental to main contract to pay for goods sold and delivered, and sellers had fully performed contract on their part when goods had been sold and delivered to buyer, who admitted the purchase of goods and price to be paid therefor, and defended solely on ground that goods had been paid for under arrangement with seller's salesman. In reply to that defense sellers for first time were driven to invoke provision in written order that no verbal agreements were accepted, and that order constituted entire contract.

10. ASSUMPSIT, ACTION OF.

Where plaintiff had fully performed special contract and nothing remained to be done except for defendant to pay amount due, recovery could be had on special assumpsit on contract or on common counts.

HON. W. A. ALCORN, JR., Judge.

APPEAL from circuit court of Tunica county, HON. W. A. ALCORN, JR., Judge.

Action by Wellford & Withers against S. A. Arnold and another. Judgment for defendant was affirmed by the circuit court, and plaintiffs appeal. Reversed and rendered.

Reversed and judgment here for appellants.

Maynard, FitzGerald & Venable, of Clarksdale, for appellant.

The order was written and signed by defendant and the salesman, and this order specifically says that there was no verbal agreements. This cannot be varied by parol testimony.

Ismert-Hincks Milling Co. v. Natchez Baking Co., 124 Miss. 205; Bettman-Dunlap Co. v. Gertz Brothers, 136 Miss. 160; J. B. Colt Co. v. McCullough, 141 Miss. 328.

Even though when a sale is completed and nothing remains but the payment of money, a bringing of a debitatus assumpsit does not prevent the showing of a special contract of sale. Where the money price is unpaid and there has been full performance a debitatus assumpsit will lie in the case of a special contract for the sale of goods.

New Orleans, etc., Railroad v. Pressley, 45 Miss. 66; Daniel v. Daniel, 4 So. 95; Richardson v. O'Neal, Walker 469; Cour v. Grace, 10 S. & M. 434.

How any business man could conceive that because on two occasions where a small sum was involved, and where the salesman had a balance of account with his principal, the principal agreed to charge the salesman with the small item and credit the purchaser, he could have the belief that the salesman had authority to enter into such an arrangement binding upon his principal for large amounts does not appear. Certainly one transaction, or two transactions, do not make a course of dealing.

Dulaney & Bell, of Tunica, for appellee.

In this case the appellants relied upon the written contract not merely to show value, which was admitted, but in an effort to recover on the promises contained in it, although the written contract was not pled as required by statute either in the declaration or by way of replication to the special plea of the appellees. In other words there was an attempt to treat a suit brought on indebitatus assumpsit as a suit on special assumpsit and thereby to preclude the defense offered by appellee and recover on the alleged written contract. This could not be done and since appellants did not offer to amend their declaration, the peremptory instruction for appellees would have been proper.

Carter v. Collins, 151 Miss. 1, 117 So. 336.

The handling of the two matters under such special arrangements without any objection on the part of appellants was sufficient to lead any man of reasonable prudence to think that the appellants were glad to have his orders for oil based on such arrangement and that Mason had authority to accept them and make such arrangements and this theory was urged in the motion for a directed verdict for appellees.

Acceptance by the appellants was acceptance of that which they knew to be the true offer of appellees.

23 R. C. L. 1288, section 104.

OPINION

Anderson, J.

Appellants brought this action against appellees in the county court of Tunica county to recover four hundred four dollars and twenty-five cents, the purchase price of petroleum oils sold and delivered by appellants to appellees. The suit was on an itemized sworn account. Appellees admitted the purchase of the goods, the price charged by appellants, and their delivery, but denied liability upon the ground that they had been paid for. There was a trial in the county court resulting in a verdict and judgment in favor of the appellees; from that judgment appellants appealed to the circuit court where the judgment of the county court was affirmed; from the judgment of the circuit court the appellants prosecute this appeal.

Appellants, located in the city of Memphis, Tennessee, were engaged in the wholesale of gasoline and other petroleum products. Appellees were engaged, at Clayton in Tunica county in this state, in the retail sale of such products. Appellants had a traveling salesman, whose name was Mason. Their contract of employment with Mason was that they would pay him a salary of three hundred dollars a month and expenses, and at the end of the year would charge him up with his salary and expenses and credit him with one-half of the net profits of the goods sold through him, and pay him whatever difference there was in his favor. The end of the year at which time settlement was to be made was the 31st of December. Mason was indebted to T. E. Salmon, one of the partners in appellees' firm, in the sum of something over two thousand dollars. Mason's duties were to visit the retail trade and take written orders for goods, subject to the approval of appellants. In other words, contracts for the sale and purchase of goods between Mason and the retail trade were subject to appellants' approval before they became binding on the latter. On August 27, 1926, Mason took a written order from appellees for fifteen drums of motor oil; the agreed price of the same being four hundred four dollars and twenty-five cents. The order was signed by S. A. Arnold for appellees and Mason for appellants. Just above their signatures the order contained these two sentences: "No verbal agreements accepted. This constitutes the entire contract." The order was accepted by appellants and the goods promptly shipped and invoiced to appellees.

Appellees testified, and so did Mason, that when the order was taken it was given by appellees upon the condition that Mason would himself pay for the goods for appellees and receive...