Opinion
15156
November 7, 1940.
Before HODGES, J., County Court, Greenville, April, 1940. Affirmed.
Action by Esslinger's Incorporated, against Murray Brothers, Incorporated, for merchandise purchased by the defendant. From an adverse judgment and an order overruling motion for new trial, the defendant appeals.
Order of Judge Hodges follows:
Suit was filed by the plaintiff against the defendant for merchandise delivered to defendant in the sum of Six Hundred Seventy-two and 2/100 ($672.02) Dollars. The defendant answered, admitting owing plaintiff One Hundred Sixty-five and 37/100 ($165.37) Dollars, but alleging that Four Hundred Forty-five and 41/100 ($445.41) Dollars in merchandise was delivered to J.W. Anderson Company, of Rock Hill, S.C. by defendant under instructions from plaintiff. Upon due notice being given, the sum of One Hundred Sixty-five and 37/100 ($165.37) Dollars, the amount admitted due, was paid by defendant to plaintiff. At the trial of the case the plaintiff, by deposition, proved the amount then due by defendant to be Five Hundred Six and 65/100 ($506.65) Dollars. At the conclusion of the testimony, the plaintiff moved for a directed verdict in the amount of Four Hundred Forty-five and 41/100 ($445.41) Dollars, which was the amount admitted due by the answer, if any amount was due, and the Court directed a verdict for this amount.
The defendant gave notice of a motion for a new trial, and moves the Court for same upon the ground that the representative of the plaintiff, who sold the merchandise to the defendant, instructed the defendant to deliver same to J.W. Anderson Company, Rock Hill, S.C. and that proper credit would be given defendant's account for same. The defendant in his testimony states that J.H. Gill, from whom he purchased the merchandise, so gave him authority.
The question presented is, whether or not J.H. Gill, the representative of creditor, had authority from the creditor to give this authorization to defendant, or whether he was acting in the apparent scope of his authority.
L.L. Harrison, the sales manager of the plaintiff, testifies that J.H. Gill is no longer in the employ of plaintiff that; he was a salesman who handled the account of defendant for plaintiff, that he had no authority other than to submit purchases from the quote list prices, and assist the plaintiff in merchandising products to the retail dealer; that Mr. Gill did not have authority to tell the defendant that defendant might resell the beer, which had been sold to him by the plaintiff, and receive credit for such resale. This witness testifies that Mr. Gill was a salesman only.
Mr. J.L. Murray, the defendant, testifies that Mr. Gill saw him and told him that he would receive credit for the beer and to deliver same to J.W. Anderson Company, Rock Hill, S.C. On pages 16 and 17 of the typewritten transcript of the stenographer are the following questions and answers:
"Q. Then you wanted to dump this beer on the plaintiff in the case by sending it to J.W. Anderson? A. I wanted them to do what they promised me, they promised me through their representative, Mr. Gill.
"Q. Who promised you? A. Mr. Gill. Who else did we have to deal with? Gill, he was the only man with us; Esslinger didn't come down here; they sent their man down, who was supposed to be their representative. I didn't know Esslinger; I did business through Mr. Gill; bought the beer through Mr. Gill; and I delivered this other beer through Mr. Gill.
"Q. All you know is that Mr. Gill came in to sell you beer and made these different statements to you that you have been telling the jury? A. Yes, sir.
"Q. And that was all? A. Yes, sir.
"Q. You didn't know from anybody working for the plaintiff whether Mr. Gill had any authority, other than as a salesman? A. Mr. Gill must have evidently had plenty of authority."
From the testimony in the case my conclusion is that Mr. Gill was a salesman pure and simple for the plaintiff, and a salesman, unless other facts are proven, does not have authority such as the defendant contends for in this case.
The defendant has attempted to prove agency by the declarations of an agent by Mr. Murray, the defendant, testifying as to what Mr. Gill, the salesman told him. Under the law of this State this cannot be done.
The motion for a new trial is hereby refused.
Mr. J. LaRue Hinson, for appellant, cites: As to apparent authority of agent: 174 S.C. 45; 176 S.E., 874; 21 R.C. L., 854; 133 S.C. 353; 131 S.E., 146; 67 S.C. 391; 45 S.E., 932; 185 S.C. 162; 193 S.E., 426; 138 S.C. 281; 136 S.E., 218; 112 Mass. 455; 35 Am. Rep., 370; 159 S.C. 301; 156 S.E., 871; 18 R.C.L., 254; 67 S.C. 391; 45 S.E., 932; 100 A.S.R., 750; 3 S.C. 1; 16 Am. Rep., 681; 82 S.C. 465; 64 S.E., 233; 158 S.C. 42; 155 S.E., 231; 176 S.C. 288; 180 S.E., 48; 129 S.C. 645; 124 S.E., 645. New trial: 176 S.C. 433; 180 S.E., 471; 189 S.C. 368; 1 S.E.2d 144; 104 S.C. 414; 89 S.E., 482; 89 S.C. 252; 71 S.E., 862.
Mr. Wilton H. Earle, for respondent, cites: Agency: 132 S.C. 212; 128 S.E., 423; 2 C.J., 597; 127 S.C. 213; 121 S.E., 204; 24 R.C.L., 389.
November 7, 1940.
The opinion of the Court was delivered by
Plaintiff brought its action to recover the amount of certain merchandise, which it alleges in its complaint it had sold and delivered to defendant.
By its answer, defendant admitted owing the plaintiff $165.37 on account of the merchandise purchased from it, which sum was paid when the case was called for trial. It denied the other allegations of the complaint, and for further answer, alleged that by direction of the agent of the plaintiff it delivered the remainder of the merchandise, so purchased of plaintiff, to J.W. Anderson, of Rock Hill, S.C. and the agent promised that plaintiff would give defendant credit therefor, which would cover defendant's indebtedness to plaintiff except for the sum of $165.37, which it then offered to pay.
The case was tried at the County Court of Greenville. At the close of the testimony, the presiding Judge, Honorable Oscar Hodges, granted the plaintiff's motion for directed verdict for the balance due, to wit, $445.41. Defendant made a motion for new trial. Judge Hodges filed an order April 5, 1940, giving the grounds of his order for directed verdict and refusing the motion for new trial. We are satisfied of the correctness of that order, but it is not amiss to emphasize its correctness by stating further that the defendant, by its own written statements, shows that it did not rely on any statements, if such were made, by John H. Gill, who it attempted to show was the agent of plaintiff and acting within the scope of his authority, when he directed the defendant to deliver the merchandise to J.W. Anderson, of Rock Hill. The correspondence thereabout was begun July 23, 1938. Defendant wrote plaintiff saying: "We have on hand at the present time 106 cases Little Man Ale and 84 cases Esslinger's Beer, which we are unable to dispose of. We are anxious to straighten up our account with you and ask that you please advise us if Mr. Anderson can use any this stock or if you have a distributor any where else within a reasonable radius who might be able to use same. We will be glad to truck the Beer and Ale to any other Distributor and will carry what empties we have to Savannah and return them to you from there when your Savannah Distributor makes another shipment."
To this letter plaintiff replied under date of July 26, 1940:
"We have your favor of July 23rd acknowledging receipt of credit memorandum of $502.76 covering delivery made to J.W. Anderson and Company, Rock Hill, South Carolina.
"With reference to the beer and ale you have on hand which you desire we assist you in disposing of, we would advise we have taken the matter up with J.W. Anderson and Company, who will call on you at his earliest convenience and inspect the products you still have on hand, and if suitable for his use, he may be in a position to dispose of same. Meanwhile, we feel that in view of the balance due on your account being so long over due that you should not withhold settlement further, pending the disposal of the products you have on hand. We would, therefore, appreciate it if you would favor us with a remittance by return mail covering the balance now due on your account.
"Any subsequent arrangements made for the disposal of any products still on hand, we will be glad to reimburse you for as soon as transaction has been completed."
It appears that Murray Brothers billed this merchandise to J.W. Anderson without their consent, but the latter did not accept it, but stored it for the credit of Murray Brothers.
Under date of August 30, 1938, the plaintiff notified the defendant that J.W. Anderson and Company had stored the beer shipped to them by defendant for defendant's credit, and plaintiff continued:
"As we have written you previously, this is your responsibility and payment for same is long past due.
"* * * Irrespective of any arrangements you make with Mr. Anderson a check for the full amount should be sent to us at once."
The exceptions are overruled, and the judgment and order appealed from are affirmed.
MESSRS. JUSTICES BAKER, FISHBURNE and STUKES and MR. ACTING ASSOCIATE JUSTICE L.D. LIDE concur.