108 Wash. 271 | Wash. | 1919
The Alaska Junk Company, through its agent, purchased from the Astoria Junk Company one hundred and fifty tons of mixed scrap iron, at
There are seven assignments of error. Assignments numbered 1 and 2 refer to the signing and entry of judgment and denying a motion for a new trial, and are controlled by the disposition made of the other assignments. Assignments numbered 3, 4 and 5 relate to the alleged modified contract, claimed by appellant to have been signed for respondent by S. E. Mesher, unsuccessfully offered in evidence, and the question of the agency of Mesher in connection therewith. Mesher was not a witness at the trial. There is no proof that he ever acted with any authority in any dealing between the parties to this suit up to and including the making of the contract. The so-called modified contract has the purported signature of respondent by Mesher. Upon identification of it by appellant, it was offered in evidence and properly refused until the agency of Mesher was shown. Attempt was made to show such agency in a general way, and also by a peculiar circumstance.
It is clear the original contract, which was made in duplicate, was not signed at all by respondent on the duplicate kept by appellant, and later when Mesher, as collecting agent for respondent, received a payment on the contract, he signed a receipt therefor, written
The sixth assignment of error refers to an instruction given the jury. It is claimed the court erroneously advised, as a matter of law, that Mesher had no authority to make any modified contract for the Astoria Junk Company. Upon the whole record, we think the instruction was clearly right. The attempt of appellant to show that Mesher had authority to make a contract for respondent had wholly failed, and besides, presumptively, an agent employed to make contracts has no power to rescind them. His duty is to acquire interests, not to give them away; nor has he any implied power to waive or give up rights or interests of his principal. 31 Cyc. 1387. In this case, Mesher was only a collection agent of respondent, and called upon appellant for that purpose. In the course of delivery of the goods from Astoria, Oregon, to Seattle, a presidential proclamation had ordered an embargo upon the export of scrap iron which greatly reduced its market value. Appellant refused to pay for a car of the iron shipped, and Mesher was sent to make collection. On reaching Seattle, appellant insisted on a cancellation or modification'of the contract, claiming the goods were unsatis
The seventh assignment of error refers to the refusal of the court to give a requested instruction permitting the jury to determine if there was a modification of the contract that was binding upon respondent. What we have just said concerning the sixth assignment of error disposes of this adversely to appellant.
, As to the quality of the goods, part of which was delivered and others tendered, although there was some testimony on behalf of appellant that they were not up to grade, respondent’s proof was that they were the particular goods examined by and sold to appellant. The matter of the quality or identity of the goods and of the account between the parties were questions of fact for the jury, whose verdict is supported by ample proof.
Judgment affirmed.
Holcomb, C. J., Mackintosh, Main, and Tolman, JJ., concur.