Opinion
No. 31584.
March 11, 1935.
1. PRINCIPAL AND AGENT.
Where agent not having possession of goods or other indicia of authority is authorized to solicit orders or make contracts to submit to principal for approval, there is no implied authority to collect, and purchaser makes payment to agent at his peril.
2. BROKERS. Principal and agent.
Brokers and traveling salesmen who have not possession of goods, and who sell for future delivery to be paid for on delivery or at future time, are without authority to collect payment for goods, and, if payment is made, purchaser makes salesman his agent to pay seller and bears risk of loss.
3. PRINCIPAL AND AGENT.
Unless expressly authorized to make absolute contract of sale, traveling salesman has authority only to solicit orders and transmit them to his principal for approval, and burden of proving that salesman was authorized to make absolute contract is on person asserting and seeking to avail himself thereof.
4. PRINCIPAL AND AGENT.
Where buyer ordered from fixture company scales selected from manufacturer's catalogue, with understanding that draft for price was to be drawn by manufacturer on fixture company with shipper's order bill attached with direction to notify buyer, and it was not shown that fixture company or its salesman had authority to go beyond merely soliciting and forwarding orders subject to manufacturer's acceptance and approval, payment to fixture company held not payment to manufacturer, and buyer was required to bear loss where fixture company failed to pay manufacturer.
APPEAL from the circuit court of Jefferson Davis County.
HON. HARVEY McGEHEE, Judge.
Replevin by Dale Co. against the Mississippi Central Railroad Company, wherein Fairbanks Morse Co. intervened. From a judgment of the circuit court for plaintiff, on appeal from a judgment of a court of a justice of the peace, intervener and the United States Fidelity Guaranty Company, surety on the appeal bond, appeal. Reversed, rendered, and remanded.
Chambers Trenholm, of Jackson, for appellants.
The trial court erred in overruling the motion to vacate the judgment rendered by the justice court, and to remand the case.
Ettringham v. Handy, 60 Miss. 334; Andrews v. McLeod, 66 Miss. 348, 6 So. 181.
The trial court erred in excluding evidence of witness Konzelmann as to a custom of the trade.
The trial court erred in refusing the claimant a peremptory instruction.
There was nothing, to connect Fairbanks Morse Company with the sale to Dale Company.
2 C.J. 464, secs. 72, 73, 74.
It is the general rule that where the agent has not the possession of the goods, and no other idicia of authority, and is authorized only to solicit orders or to take contracts to submit to the principal for approval, he has no implied power to collect at any time, and the purchaser makes payment to him at his peril.
2 C.J. 605, sec. 239.
A traveling salesman or drummer, unless expressly authorized or held out as having such authority, has authority only to solicit orders and transmit the same to his principal for approval, and may not make an absolute contract of sale.
2 C.J. 593, sec. 229; L.A. Becker Co. v. Clardy, 96 Miss. 301, 51 So. 211; Bank v. Grocery Co., 123 Miss. 443, 86 So. 275; Lumber Co. v. Sibley, 130 Miss. 26, 93 So. 440.
And the burden of proving that the salesman was authorized to make such contract is upon the person asserting it, and seeking to avail himself of it.
Lumber Co. v. Sibley, 130 Miss. 26; 2 C.J. 508, sec. 125; Development Co. v. Insurance Co., 105 Miss. 184, 62 So. 169; Burns v. Keely, 41 Miss. 339.
From the whole record it is perfectly manifest that neither Steele nor Dewees nor the Dewees Fixture Company ever held themselves out to Dale Company as agents of Fairbanks Morse Company.
Livingston Milloy, of Prentiss, for appellee.
It was not a question of what was the custom of the trade, but the question presented in this record is what was the real facts as regards to this litigation.
We think the jury was entitled to hear all the facts and circumstances connected with the entire transaction to determine whether or not the man who sold the scales was the agent of Fairbanks Morse Company.
Taking all the facts and circumstances and the inferences to be drawn therefrom, we think that this was purely a case for the jury to pass upon. It is true that Fairbanks Morse Company denied that the salesman was the agent, nevertheless, Dale Company claimed that he was, so the contradiction presented a conflict of the testimony as to the material facts of agency along with the other testimony in the case tended to show the agency, and this question should have been submitted to the jury for its determination.
McCloskey Bros. v. Hud Milling Company, 80 So. 492.
The jury resolved and found this issue in favor of the appellees and, as we see it, rightfully so. This court has held in a great number of cases that the findings of fact by a jury will not be disturbed on appeal. This is clearly a case passed upon by the findings of the fact by jury under proper instruction of the court.
Morris v. St. Louis Railroad, 101 Miss. 568; Miss. Central Railroad v. Camel, 114 Miss. 803; Gunter v. Yazoo Railroad, 145 Miss. 475; St. Louis Railroad v. Bourn, 107 Miss. 97.
Argued orally by E.L. Trenholm, for appellant.
Appellee, a mercantile company at Prentiss in Jefferson Davis county, brought this action of replevin in a court of a justice of the peace of that county against the Mississippi Central Railroad Company to recover a pair of scales. At the trial appellant Fairbanks Morse Company intervened and claimed title and right of possession to the scales. By agreement the railroad company was eliminated from the case and Fairbanks Morse Company substituted as defendant. The trial resulted in a judgment for appellee for the scales and damages in the sum of one hundred fifteen dollars and costs against Fairbanks Morse Company. From that judgment Fairbanks Morse Company appealed to the circuit court, where there was a trial de novo, resulting in a judgment in favor of appellee for the scales and damages in the sum of fifty dollars and costs against appellant Fairbanks Morse Company and the surety on its appeal bond, United States Fidelity Guaranty Company. From that judgment both Fairbanks Morse Company and its surety prosecute this appeal.
There was little, if any, conflict in the material evidence. Dale Company, as stated, was engaged in the mercantile business at Prentiss. Dewees Fixture Company was engaged in business in Jackson. Fairbanks Morse Company, which for convenience will be referred to as the Fairbanks company, had its office for this territory in the city of New Orleans. One Steel was a traveling salesman for the Dewees Fixture Company; he solicited and received the order for the scales involved; he carried with him a Fairbanks company catalogue. The scales were selected by appellee from that catalogue. Steel and appellee both understood that the scales would be ordered from the Fairbanks company. The price was twenty-two dollars and fifty cents. Appellee was anxious for a quick delivery of the scales. Steel represented that he was taking the order through his principal, Dewees Fixture Company. The scales were to be shipped C.O.D.; draft was to be drawn by the Fairbanks company on Dewees Fixture Company for the price, with shipper's order bill attached with direction thereon to "notify Dale Company, Prentiss, Mississippi." The draft was to be drawn through the Capital National Bank at Jackson. At the time the order was taken by Steel, appellee gave Steel a check on its bank for the price of the scales, payable to the Dewees Fixture Company. This check was later cashed by the Dewees Fixture Company and the funds appropriated to its own use; no part thereof ever having been either paid to the Fairbanks company or returned to appellee. There is a glimpse in the record that bankruptcy was the reason. The Fairbanks company accepted the order and shipped the scales on a shipper's order bill "notify Dale Company, Prentiss, Mississippi," indorsed the bill, drew a draft on Dewees Fixture Company, attached the bill to it, and forwarded them to the Capital National Bank at Jackson for collection. The draft was never paid. Appellee, having paid Dewees Fixture Company for the scales, thought that under the law it was entitled to receive them; they were in the custody of the railroad company at Prentiss, and Dale Company demanded of the railroad company that they be delivered to it. The railroad company refused to do so, unless appellee should produce and deliver to it, properly indorsed, the shipper's order bill. Appellee could not do this, because the bank would not surrender it until the draft was paid. Thereupon appellee brought replevin against the railroad company for the scales, followed by the trials and results above stated.
The case turns on whether or not Dewees Fixture Company, through its agent Steel, was the agent of the Fairbanks company with authority to take the order for the scales and collect the price. The evidence for the Fairbanks company, which was undisputed unless it was by inference, showed that appellee was unknown to it; that the Dewees Fixture Company was one of its customers; that it sold the scales to the Dewees Fixture Company on shipper's order bill attached to a draft on Dewees Fixture Company for the price; that it knew that Dewees Fixture Company was ordering the scales for its customer, appellee, because the order provided for shipment to Prentiss with directions to notify appellee. It showed further that neither the Dewees Fixture Company nor its agent Steel had any authority to collect the price of the scales.
The evidence relied on, which for the purpose of this decision will be taken as true, as constituting the Dewees Fixture Company and its agent Steel the agents of the Fairbanks company with authority to not only take orders but collect, was substantially as follows: Some months before Steel took this order he was in Prentiss; he had a business interview with appellee; he had with him a Fairbanks company catalogue and claimed to be representing that company. At that time he took no order from appellee. When the order for the scales was taken, Steel had with him the Fairbanks catalogue, the scales were selected by appellee therefrom, and the price fixed from the catalogue price. Putting it stronger than the evidence showed either directly or by any reasonable inference, Steel represented his principal, Dewees Fixture Company, as the agent of the Fairbanks company, and the sale of the scales was therefore being made by the Fairbanks company to appellee through that agency. In other words, let this be the case: Dewees Fixture Company was the agent of the Fairbanks company to solicit orders and send them in for the approval of the latter. The evidence certainly went no further; that was nothing to show either directly or indirectly that the Fairbanks company had given the Dewees Fixture Company the additional authority to collect for the scales. The draft with the shipper's order bill attached is conclusive proof that all the parties concerned knew that no one had authority to collect except the bank that held it.
Where an agent has not the possession of the goods and no other indicia of authority, and he is authorized to solicit orders or make contracts to submit to the principal for approval, there is no implied authority to collect, and the purchaser makes payment to him at his own peril. Under this principle, brokers and traveling salesmen who have not the possession of the goods, and who sell for future delivery to be paid for on delivery or at a future time, are without authority to collect payment for the goods. If payment is made to a person occupying that relation, the purchaser makes him his agent to pay the seller, and, if he fails, it is the purchaser's loss and not the seller's. Becker Co. v. Clardy, 96 Miss. 301, 51 So. 211, Ann. Cas. 1912B, 355; Cape County Sav. Bank v. Grocery Co., 123 Miss. 443, 86 So. 275; Planters' Lumber Co. v. Sibley, 130 Miss. 26, 93 So. 440; 2 C.J., p. 593, sec. 229; 2 C.J., p. 605, sec. 239. Unless expressly authorized to make an absolute contract of sale, a traveling salesman has authority only to solicit orders and transmit them to his principal for approval, and the burden of proving that the salesman was authorized to make such a contract is upon the person asserting and seeking to avail himself of it. Planters' Lumber Co. v. Sibley, supra.
It was not shown either directly or by reasonable inference that either the Dewees Fixture Company or Steel had any authority to go beyond merely soliciting and forwarding orders subject to the acceptance and approval of the Fairbanks company. It follows that the payment by appellee to the Dewees Fixture Company was not a payment to the Fairbanks Company, and the loss must therefore fall on appellee and not on the Fairbanks company. Therefore the Fairbanks company was entitled to a directed verdict and judgment on liability, and final judgment will be rendered here accordingly. The cause must be remanded, however, for the assessment of damages alone.
Reversed and remanded.