125 Ga. 153 | Ga. | 1906
The Americus Grocery Company sued.J- B. Burch for a balance alleged to be due on open account. The only item in dispute was one of May 8, 1903, for a certain quantity of tobacco. The defendant contended that this item was purchased by his clerk, Mike Burch, after he had left his emplojunent, and that he neither authorized nor ratified the purchase nor received the tobacco. On the other hand, the plaintiff insisted that Mike Burch was the general agent of the defendant in the management of his store, and as such, on .previous occasions, had ordered goods of plaintiff on defendant’s' account, and that the plaintiff, without notice that Mike Burch was no longer employed by the defendant, took the order in the defendant’s name and shipped the goods to the defendant, as was usual in the past transactions. On the trial it appeared that the defendant operated a sawmill and in connection therewith conducted a store or commissary. The commissary was in the charge of Mike Burch, who purchased all the merchandise therein sold and managed the business. On former occasions the plaintiff had sold merchandise to the defendant upon the order of his agent, Mike Burch. When the merchandise, to recover the price of which the present action was brought, was ordered of the plaintiff by Mike Burch, he was not in the employment of the defendant, and had not been for two months past. Neither the plaintiff company nor its “drummer” was aware at the time of receiving the order that Mike Burch was no longer in the service of the defendant. The plaintiff’s salesman called at the commissary of the defendant and asked for Mike Burch, as he had alwaj^s done, and was informed that Mike Burch was about three miles awajr, superintending the putting down of a sawmill. ■ There he found him and took the order for the merchandise. It was shipped to the defendant, and the bill of lading was mailed to him. The defendant testified, that the goods were never received by him, but were taken possession of by Mike Burch without his knowledge, and that he never received the bill of lading for the goods. Upon these facts the jury returned a verdict in favor of the plaintiff for the value of the goods, which verdict the trial judge refused to set aside on motion for a new trial.
Judgment affirmed.