134 Ill. 188 | Ill. | 1890
Lead Opinion
delivered the opinion of the Court:
The question presented by this record is one not entirely free from difficulty. As to the main features of the ease there is no substantial controversy in regard to the facts. Holmes had possession of the samples, and claimed authority to sell and receive the pay therefor. The defendants purchased the samples, paid Holmes for.them by check, payable to Joel J. Bailey & Co. or bearer, and he delivered the goods. So far as appears, defendants acted in perfect good faith, relying upon the representations of Holmes.
We think it may be stated as a general rule of law, that an agent who has the possession of goods belonging to his principal, with authority to sell, has an implied authority to receive payment for the goods sold. (Story on Agency, sec. 101;, Rice v. Groffman, 56 Mo. 434; Pulman v. French, 53 Vt. 404; Lumley v. Corbett, 18 Cal. 495; Capel v. Thornton, 3 C. & P. 352.) In the case last cited, where goods had been sold and delivered by an agent, and he had received the pay, it is said: “There is no evidence that the defendant ever gave any order to the plaintiffs. Indeed, it is proved that the defendant only dealt with Ellsworth, who is admitted by the notice to be the agent of the plaintiffs, and if he, as their agent, had authority to sell goods, so he had, in the absence of advice to the contrary, an implied authority to receive the proceeds of such sale. The plaintiffs can not avow the acts of their agent as to one part of the transaction, and repudiate them as to another part.” Had the agent, Holmes, sold defendants a bill of goods, and taken an order from them for a shipment of the goods from the house in Philadelphia, it is clear a payment to the agent for goods thus bought would not have been binding on the plaintiffs. (Clark v. Smith, 88 Ill. 298.) But this is a different case. Here, Holmes was not only clothed with the power of sale, but he had the possession of the goods, and was able to pass them over to the possession of the purchaser upon making sale, and receiving payment.
But it may be said that Holmes was not empowered by the plaintiffs to sell the goods,—that he merely held the samples as a means to solicit orders. A sufficient answér to this position is, that the acts of plaintiffs since the sale may be regarded as a ratification. Where the owner whose goods have been sold without authority, sues the purchaser for the amount of the contract price for which the goods were sold, the sale, although unauthorized, will be regarded as ratified. (Story on Agency, sec. 259; 2 Greenleaf on Evidence, see. 66.) The latter author says : “Thus, if goods are sold without'authority, and the owner receives the price, or pursues his remedy for it by action at law against the purchaser, or if any other act be done on behalf pf another, who afterwards claims the benefit of it, this is a ratification.” See, also, Peters v. Balleston, 3 Pick. 495.
In the case under consideration, as soon as plaintiffs learned of the sale they made out a bill according to the contract price, presented it to the defendants, and demanded payment for the goods. This was followed by the present action in assumpsit to collect the amount for which the goods were sold. If, therefore, Holmes made the sale without direct authority, these acts of the plaintiffs, after full knowledge of the sale, may be treated as a ratification of the sale made by Holmes. The case then stands in this position: Holmes had possession of the goods, claiming the right to sell; he called on defendants, and they bought the goods; he delivered the goods, collected the pay, and gave defendants a receipt acknowledging full payment. Plaintiffs first deny authority to sell, but by their acts concede the power of sale, but deny authority to collect the pay for the goods. This they can not do. The power of sale, or the sale without authority, subsequently ratified, carried with it the implied power to receive payment. Had the sale been repudiated by the plaintiffs, and an action brought to recover the goods, a different question would arise. But that course was not pursued.
Kohn v. Mosher, 64 Tex. 131, has been cited as an authority to sustain plaintiffs’ position. We do not regard the ease as one in point. What was said by the court in the opinion seems to sustain the view of plaintiffs in error; but upon an examination of the ease it will be found that the real point decided was, whether an instruction informing the jury that if a sale of the samples was embraced within the real or apparent scope of the agent’s authority the principal would be bound by the sale, was authorized by the evidence, and the court held that it was not.
It is also insisted, that the evidence is not sufficient to establish payment of the goods. This is predicated on the position that the giving of a check for the goods was not a payment. Where a check is given for goods purchased, in the absence of an agreement that it is accepted as payment, it may be conceded, as held in Heartt v. Rhodes, 66 Ill. 356, and Stevens v. Park, 73 id. 388, that the check is but a conditional payment. But in this case we think it is clear, from the evidence introduced by the plaintiffs, that if a check was given for the goods it was accepted as absolute payment. In one of the defendants’ letters read in evidence by the plaintiffs they say: “Tour Mr. Holmes sold us the samples for cash. He delivered us the goods and got our check, payable to Joel J. Bailey & Co. or bearer. We had bought a sample line of lisle and ass’t gloves two weeks previous to this lot, and paid him the cash for same, as he sold them to us for cash,—:the both lots. He made out the bills, and we have receipts for same.” If it be true that'a check was given, as intimated in this letter, and it was accepted as payment, and a receipt given showing full payment, nothing more was required to establish prima facie payment. (2 Moore on Banks on Banking, sec. 546.) In another letter of later date, which plaintiffs read in evidence, will he found the following: “The goods referred to were bought * * * from your agent, Mr. Holmes, who had them in his possession, and were paid for in cash on delivery, as agreed bn at the time of purchase; and all this was done in perfect good faith.” This letter was sufficient to establish the fact that cash was paid for the goods on delivery. These letters were offered in evidence by the plaintiffs, and they were bound by the contents, and, under either, the fact of payment may be regarded as established.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
Dissenting Opinion
dissenting.