90 A. 102 | Md. | 1914
This suit was brought on the common counts in assumpsit to recover the contract price of goods claimed to have been sold by the appellees to the appellant. The defendant, appellant, pleaded the general issue plea, and the trial in the Court below resulted in a judgment for the plaintiffs from which the defendant has appealed.
The evidence shows that the defendant conducted a large department store in Baltimore City, and in the conduct of that business employed a "buyer" for each department of the store. One of the duties of the "buyer" was to make out orders for goods required in his department and submit them to the manager or proprietor for his approval or confirmation. The "buyer" was not authorized to purchase goods, but his authority in that connection was limited to selecting and making out the orders for the goods needed *556 in his department and submitting them to the manager or proprietor, for his approval and signature. Accordingly the "buyer" of each department was supplied with a book containing blank orders of the following form:
"Salesman ________________ Date ____________ 191 . Messrs. _________________________________________ Time for Delivery: Terms: ______________________ ________________________
Albert A. Brager,
Baltimore.
Ship via ____________________________ For Department _________________ Dating _________
All goods sent in excess of, or different from this order, will be returned at expense of shipper. All goods not sent with first shipment to be prepaid.
Lot No. _________________________________________ _________________________________________ _________________________________________ _________________________________________ Total Amount __________________________
This order is not valid unless signed by the Firm or Manager."
These books were arranged so that three impressions or copies could be made of each order, and according to the rules and custom of the defendant after an order is signed by the manager or proprietor one copy is sent to the manufacturer or person from whom the goods are ordered, and another copy to the receiving clerk of the defendant. Goods are received by the receiving clerk according to the copy of the order delivered to him, and no goods are accepted by the store unless there is an order for the same signed by the manager or proprietor. This method of purchasing goods had been established and strictly observed by the defendant for a number of years and was never departed from, and goods were never accepted by the defendant unless they were ordered by the manager or proprietor, except in some instances where the amounts of the purchases were under *557 twenty-five dollars. The evidence also shows that it is the uniform and established custom of department stores in Baltimore City to require orders made out by the "buyers" of the various departments to be confirmed or approved by the managers or proprietors.
In May, 1911, the defendant employed William S. Weinstein as "buyer" for the boys' and children's clothing department of his store, and he was given one of the order books referred to and used it in making out orders for goods needed in his department. The plaintiffs, who were engaged in business in New York, knew Weinstein, and in May, 1911, wrote their agent and traveling salesman, Samuel Markowitz, to go to see Weinstein. Markowitz had never sold goods to or had any dealings with the defendant and had never sold goods in Baltimore. He went to the defendant's store to see Weinstein on the 31st of May, 1911, and he states that Weinstein introduced him to Carey, the assistant "buyer" for the department in which Weinstein was engaged, and told him that Carey was the "head man." Later on the same day Weinstein and Carey met him by appointment at the Howard House, where he exhibited to them his samples and Weinstein gave him a written order for goods amounting to $1,098.00, to be shipped to the defendant September 1st, 1911. Weinstein and Carey say that when the order was made out and given to Markowitz, they explained to him that the order was not binding on the defendant until it was signed or confirmed by the manager or merchandise man of the defendant or by the defendant. Markowitz says that nothing was said to him "about confirmation of the order"; that when he obtains an order for goods he sends it to the plaintiffs, and that they send samples of the goods indicated by the numbers in the order to the "buyer" of the purchaser of the goods with a letter thanking him for the order. While Weinstein was on his vacation about the middle or last of August, 1911, he went to the store of the plaintiffs in New York, looked at the samples of the goods he had ordered and *558 told plaintiffs to ship all that they had ready on or as near the first of September as they could, and to ship the balance "as soon thereafter as possible." On September 2d 1911, the plaintiffs shipped to the defendant a part of the goods ordered by Weinstein, to the amount of $893.50. When they arrived in Baltimore the defendant refused to accept them, and wrote the plaintiffs as follows:
"Baltimore, Md., Sept. 5, 1911.
Messrs. Levy Markowitz, 718 Broadway, New York City.
Gentlemen: —
We have declined to receive a shipment of goods from you today as our office knows nothing of this purchase.
It is an inviolate rule with this house to require all orders to be confirmed in the office. Hence, you should not have shipped us any goods until you received such confirmation.
Very truly yours, A.A. BRAGER."
The evidence further shows that the order given by Weinstein to Markowitz was never signed or approved by the manager or the defendant, and that neither of them knew that the order had been given until after the goods arrived.
Under the pleadings it was incumbent upon the plaintiffs to prove an acceptance of the goods by the defendant, or that they had been shipped to the defendant in compliance with the terms of an order or agreement signed by the defendant or his authorized agent. 1 Poe, Prac. Pl., secs. 96-97; Art. 83, § 25, Code of 1912.
As we have said, the evidence shows that Weinstein, who gave the order for the goods, was not authorized by the defendant to purchase them. There is some confusion and contradiction in the testimony of Weinstein as to what he understood his authority to be, but taking his testimony as a whole we think it is clearly to the effect that he knew at the time he gave the order in question that he had no power to bind *559
the defendant without the signature or approval of the defendant or his manager, for he repeatedly states that when he made out the order he told Markowitz that it was not binding until it was confirmed. The appellees contend, however, that the mere fact that he was called "buyer" for the department in which he was employed was sufficient to warrant the plaintiffs or their agent in assuming that he had full authority to order the goods, and that the defendant cannot rely upon any limitations upon his authority of which the plaintiffs were not advised. It is said inLister v. Allen,
The appellees also contend that the existence of an agency, and the extent of the agent's powers are questions of fact for the jury, and that is the general rule where the authority of the agent is not conferred upon him by a written instrument.Groscup v. Downey,
It follows from what we have said that the defendant's first prayer, which sought to withdraw the case from the jury on the ground that the evidence in the case was not legally sufficient under the pleadings to entitle the plaintiffs to recover, should have been granted.
In this view of the case it is not necessary to determine whether the case should have been taken from the jury upon the further ground that the evidence failed to show that the goods were shipped or delivered to the defendant in accordance with the terms of said order, or to consider the other propositions urged by the appellant.
Judgment reversed with costs to the appellant without awardinga new trial. *563