Cobb v. Arundell

| Wis. | Jun 15, 1870

Paine, J.

The questions, whether the teamster Mitchell had any authority to order the machine heads for the defendant, and whether the teamster Davey had any authority, at the time he paid for the defendant the $18 on the old account, to request the plaintiffs to “ let the account for the machine heads run,” were fairly submitted to the jury, in such a manner that they must have clearly understood that if they found either the original authority or the sub sequent ratification necessarily implied by such a request, then the plaintiffs ought to recover. They found for the defendant; and there was nothing in the evidence that would justify either this court or the court below in interfering with the verdict upon either of these points.

Certainly, no practice by the people of Dodgeville to send orders for goods to Mineral Point by these teamsters, no matter how general such practice may have been, could constitute any such apparent authority as would have justified the plaintiffs in assuming an agency, as against any one who had never previously employed them. The question of agency in such cases is not of such a joint character, that because a majority, or many, of the people of a town employ a person as agent, therefore those knowing that fact may justly assume that he is agent for all the rest. And if, upon the strength of that alone, they deal with him as agent of one who has never previously employed him, they take the risk of his having an actual authority.

The only question in the case about which we have any doubt is, whether the judgment ought not to be reversed for the instruction given by the court, that “ the evidence must show a mutual dealing between the parties in order that an account stated shall have the effect of being considered correct if not objected to in a reasonable time.” That is not a correct proposition, if by the words “ mutual dealing ” the court meant that there must be on each side some charges besides money. There seems to be no reason why the principle in question would not apply to a single bill of goods sent by the vendor to the purchaser, who should retain it without objection. But we have come to the conclusion that although this instruction was erroneous, the judgment ought not to be reversed on account of it, because, upon the undisputed evidence, the principle relied on by the plaintiffs, and which they claim this instruction deprived them of the benefit of, was inapplicable to the facts. The defendant and Davey both testified that when Davey attempted to deliver the machine heads to the defendant, the latter declined to receive them, saying that he had never ordered them, and only allowed them to be stored in his warehouse for the convenience of the teamster. This evidence is undisputed. Neither of the witnesses is impeached. Upon this evidence Davey must be held to have been the agent of the plaintiffs for the purpose of. tendering the articles to the defendant; and when, upon such tender, the alleged purchaser refuses to receive the property, and informs the agent that he never bought it, that is information to the principal. And if, after such a transaction, the principal sends bills to the alleged purchaser, including this property, the latter cannot be bound to constantly repeat his refusal and protest against such bills, under peril of being held to have admitted their correctness. When he has once informed the very agent sent with the property that he never ordered it, and refuses to receive it, he may rest upon that as a sufficient dissent.

We discover no error in the rulings of the court - below, and the judgment must be affirmed.

By the Court. — Judgment affirmed.