Dannenberg Co. v. Hughes

30 Ga. App. 83 | Ga. Ct. App. | 1923

Jenkins, P. J.

(After stating the foregoing facts.) A traveling salesman is a special agent whose authority is presumed to be limited to taking and receiving orders to be transmitted to his principal for acceptance. Brandenstein v. Douglas, 105 Ga. 845 (32 S. E. 341); Cable Co. v. Hancock, 2 Ga. App. 73, 74 (58 S. E. 319); Hopkins v. Armour, 8 Ga. App. 442, 444 (69 S. E. 580). The burden is upon one dealing with a special agent to show authority from his principal for any act of the agent other than such acts as are usual and incident to the due performance of the particular purpose of his agency. Wise v. Mohawk Rubber Co., 23 Ga. App. 255 (98 S. E. 100). Thus, since the evidence of the plaintiff’s manager and of her traveling salesman to the effect that the salesman was in fact unauthorized to enter upon an unconditional sale of the goods is undisputed, and since the evidence for the defendant fails to indicate that the plaintiff was aware, when she made' a partial acceptance of the unsigned order, that hex agent had assumed any such authority or intention, and since, on the contrary, the evidence for the defendant itself fails to indicate that it dealt with the person talcing the order in any other or different capacity than as a traveling salesman employed to assist in the specific task of disposing of a particular stock of goods, the taking of such unsigned order could not amount to an unconditional contract, even had the jury seen proper to accept the evidence for the defendant, denying the salesman’s testimony that he took the order with the condition indicated expressly stated; nor could the partial acceptance of the order by the plaintiff bind her to fill the unaccepted portion under the principle that when. an “ agent exceeds his authority, the principal can not ratify in part; he must adopt the whole or none” (Civil Code of 1910, § 3593). Under none of the evidence could the plaintiff become bound without an acceptance on her part, and, in partially accepting the order, the plaintiff did not purport to ratify any portion of an unconditional sale made by her unauthorized agent, but, according to her theory.and contention as to the conditional character of the order, merely exercised her expressed right to accept the order in part, according to the state of the depleted stock. But even according to the defendant’s evidence that no such condition was actually expressed in connection with the taking of the order, it amounted to nothing more than an offer to purchase, until accepted, and a partial acceptance would not make the entire order binding; but, treating the order as an entire one, such partial acceptance could only have amounted to a counter offer such as the defendant purchaser might have declined. Singer v. Santa Paula Commercial Co., 140 Ga. 411 (78 S. E. 1094); Monk v. McDaniel, 116 Ga. 108 (3), 113 (42 S. E. 360). When, upon the receipt of the defendant’s order or offer, it was notified that the order would be accepted only to the extent of such goods as remained in stock, and the goods covered by such partial acceptance were thereafter shipped by the seller as in full and complete satisfaction of the order, the purchaser was bound to pay for the goods thus shipped, accepted, and retained, as a full performance of the only contract actually' entered upon. There never having been’ a binding contract of purchase and sale for any "portion of the goods included in the order save those actually shipped and accepted, it is unnecessary to determine whether, if there had been such a contract, the acceptance by ■ the purchaser of the' goods actually shipped, with notice that such shipment was made as in full and complete satisfaction of the contract, would preclude the defendant from a recovery in damages.

The instruction to the effect that, in the event' the -jury should find that the agent and the defendant’entered into an “unconditional contract,” the defendant would have to pay for the goods actually received and accepted, was not erroneous. The other exception, taken to a certain excerpt from the charge, on the ground, that it was misleading and confusing, is without merit. There have been five trials of this case, one of which resulted in a mistrial, and three of which in a verdict for the plaintiff in the amount sued for, the defendant on each occasion having been granted a new trial by the court below. The verdict rendered for the plaintiff on the trial now under review is fully authorized by the evidence.

Judgment affirmed.

Stephens and Bell, JJ., concur.