137 Mich. 35 | Mich. | 1904
This case was tried by the court with•out a jury. A finding of facts was made, and judgment rendered for defendants. We state such of said facts as are necessary to a disposition of the legal questions involved.
Plaintiffs are copartners engaged in the business of selling machinery at Grand Rapids, Mich. Defendants were ■copartners engaged in selling farm implements at Harbor Springs, Mich., under the firm name of the Harbor Springs Implement Company. Their business was the sale of farm implements, but it did not include the buying and selling of threshing machines, and no such machines were in fact sold except on commission. Some time after the formation of the partnership, plaintiffs stated to defendants that they would pay 20 per cent, commission if the defendants would procure a customer to whom they ■could sell a threshing outfit. The articles of copartnership between defendants contained this clause:
“The said W. H. Coon is to give his undivided time and attention to the said business, and is to have general charge of the canvassing part of said business. The said Frank F. Foster and Cornelius Burke are to look after the buying and selling of stock, to the keeping of the books of account, and the store work generally.”
Before the transaction hereinafter set forth, defendant Foster notified plaintiff Brown of the substance of the foregoing clause.
On the 24th of August, 1900, defendant Coon and one Frank Gillespie met plaintiff Brown at Grand Rapids. Said plaintiffs and said Frank Gillespie, who acted for himself and assumed to act for his father, John Gillespie, entered into a written agreement whereby plaintiffs sold ■and said Gillespie purchased a steam threshing outfit for ;#650; $100 cash (which had been deposited with defend
First. Was the partnership composed of the three defendants responsible for Coon’s action in turning the machinery over to Gallagher? We think the verbal agreement made between defendant Coon, as the representative of his partnership, the plaintiffs, and Frank Gillespie, that the machinery should not be shipped from Harbor Springs to Beaver Island until the securities were obtained, created an obligation binding upon the defendant partnership. Though the business of the copartnership did not-include the buying and selling of threshing machines, it is a necessary inference from the findings that those were sold on commission. While the articles of copartnership gave defendant Coon “ the general charge of the canvass ing part of said business,” and made it the duties of defendants Foster and Burke “to look after the buying and selling of stock,” we cannot presume that the general authority of the defendant Coon, as a copartner, was not sufficient to authorize him to make arrangements inspecting threshing machines to be sold on commission. He had, in our judgment, as the representative of the defendant partnership, sufficient authority to agree with the owner of goods to be sold on commission that they should not be delivered to a purchaser until payment of the purchase price was secured. If it were otherwise, proper arrangements between owners of goods and agents who sell on commission could not be made. Is the rule changed by the circumstance that the outfit in question was shipped in the name of the Gillespies? I do not think so. By verbal arrangement between defendant Coon, Frank Gillespie, and the plaintiffs, Coon had authority to keep the threshing machine in Harbor Springs until this settlement
Was this possession of defendant Coon the possession of the defendant partnership? I think we are bound to conclude that it was the intent of this arrangement to obligate the defendant partnership, and not simply defendant Coon, to assume possession of the machinery if the Gillespies failed to make the agreed settlement. And, as we have aready indicated, defendant Coon had authority to bind the defendant partnership by such arrangement. We must conclude, therefore, that when Coon took possession of the machinery, on the failure of the Gillespies to furnish the agreed security, his possession was the possession of the defendant partnership. His delivery of the machinery to Gallagher was the wrongful conversion by defendants of plaintiffs’ property.
It is insisted that plaintiffs cannot recover because they, by their conduct, ratified the contemplated sale to Gallagher. There is certainly no finding of fact that they ratified said sale, but it is insisted that their failure to promptly disaffirm the contract made in their names amounts to a ratification. The most that can be said of that conduct is that it indicates their willingness to let the sale to Gallagher stand if the defendants would pay them the value of the machinery less their commissions. Surely, defendants have no right to say that this conduct amounts to a ratification.
The suggestion is also made that the action, being brought on the common counts in assumpsit, amounts to a ratification of the sale by Coon to Gallagher, because plaintiffs cannot recover on the common counts except on the theory of such ratification. Our conclusion, as hereinafter stated, that plaintiffs can waive defendants’ conversion, and recover on the common counts, is a sufficient .answer of this contention.
Can plaintiffs waive this tort, and maintain an action of assumpsit ? If they can, they can recover under the declaration in this case, for the common counts in assumpsit are a part of their declaration. When the machinery was delivered to Gallagher, it was in defendants’ possession as agents or bailees of plaintiffs. We think it is settled that, under these circumstances, the owner of the property may waive the tort and recover on the common counts in assumpsit. See Newman v. Olney, 118 Mich. 545 (77 N. W. 9); Tuttle v. Campbell, 74 Mich. 652 (42 N. W. 384, 16 Am. St. Rep. 652).
We think the parties, by their correspondence, have fixed $600 as the value of the threshing outfit, and that ■defendants are entitled to 20 per cent, of this as commission.