Becker Co. v. Clardy, 51 So. 211

Becker Co. v. Clardy

51 So. 211 | Miss. | 1909

Smith, J.,

delivered the opinion of tbe court.

Tbis is an appeal from a judgment in tbe court below awarding appellee damages for tbe failure of appellant to deliver a soda fountain alleged to have been purchased by appellee from appellant.

Becker Company is engaged in tbe manufacture and sale of soda fountains in tbe city of Chicago1, with a branch office in tbe city of Atlanta. J. E. Stanion is its traveling salesman, working on commission, with authority only to solicit orders and send same to bis principal for acceptance. (Hardy, ap-pellee, is a druggist, doing business in tbe town of Starkville. On or about tbe 20th day of March, 1908, Stanion obtained from Clardy a written order for a soda fountain and equipment to be furnished by Becker Company. Tbis order was by him forward to bis principal. On tbe 24th of March, Becker *307Company wrote Clardy, declining, in effect, to accept tlie order, .and stating that he (Clardy) would have to make certain changes in the fountain in order to obtain same at the price offered; also stating that it had instructed Stanion to see him, and expressing the hope that Stanion would be able to do business with him. On April 2d the Becker Company telegraphed Stanion to “see Clardy immediately and get better contract or return .original contract.” Stanion thereupon went to Stark-ville to see Clardy, and while there received the following telegram from the Becker Company: “Do not lose this order. Get best contract possible and seiid in.” After some negotiation Stanion obtained from Clardy a new order for a soda fountain in all respects identical with the former order, which had been declined. This order required the payment of the ■sum of $100 with the order, and $400 on receipt of bill of lading, the remainder to be paid in monthly installments. Clardy gave to Stanion his check for $100, which check, together with the order,'was by Stanion forwarded to his principal at Chicago, with the request that it notify Clardy at once whether the order would be accepted or declined. After giving the second ■order, and on the day it was given, Clardy sent the following telegram to appellant’s branch house at Atlanta: “Want you to confirm Stanion’s contract with me. He made no change in price or terms as first given. He accepted same.” To this telegram he received no reply. Hpon receipt of the order and ■check, Becker Company deposited the check in its bank, and •same was in due course paid by the bank at Starkville upon which it was drawn. On April 10th Becker Company wrote Clardy regretting its inability to accept the order, stating that the very best price it could furnish the outfit for was $2,250. The price made Clardy by Stanion was $1,650. In this letter was inclosed a check for $100 to cover the amount paid by Clardy on the order. Clardy declined to accept this check, returned same to Becker Company, and demanded that his *308order be filled, and, on tbe refusal of Becker Company so to do, instituted tbis suit to recover tbe $100 paid by bim and $600' damage alleged to have been sustained by bim because of tbe refusal of Becker Company to comply with its alleged contract to build and deliver tbe soda fountain to bim. At tbe close of tbe evidence tbe court refused to grant appellant a peremptory instruction, and instructed tbe jury to find for appellee. From a verdict and judgment accordingly, tbis appeal is taken.

Stanion bad no authority, express or implied, to make an absolute contract of sale, and there is no evidence that be was beld out to Clardy or tbe general public as having such authority. He was beld out by tbe Becker Company to Clardy and tbe general public as its traveling salesman or “drummer” only, and in tbe absence of express authority such an agent has authority only to solicit. orders and transmit same to bis principal for approval. In addition, Clardy bad notice of tbe limitation on Stanion’s authority. His first order given Stan-ion bad been declined by Stanion’s- principal. On giving tbe second order, be telegraphed the Becker Company, requesting that tbe order given Stanion be confirmed. He practically admits such notice on cross-examination. Tbe telegrams received by Stanion conferred no authority upon bim additional to that which be already possessed, which was to' “get best contract possible and send in” — of course for confirmation by bis bouse. He was simply told specifically to do in each instance what his contract with bis bouse required bim to do generally.

But it is contended that Becker Company, by depositing and collecting the check for $100 given Stanion by Clardy, thereby accepted the order. Hpon receipt of tbis order tbe Becker Company was entitled to a reasonable time in which to examine and determine whether it would accept or reject same. Its general instruction to its cashier was to bold no checks, but to deposit same for collection immediately upon receipt thereof. This was a proper business” regulation. Tbe order was re*309jected within a reasonable time, and as soon as this was done .an offer was made to return the money. Depositing the check :for collection, therefore, did not constitute an acceptance of the order.

Appellee is entitled to recover only the $100' paid by him to Stanion, and interest thereon.

Reversed and remanded.