Falletti v. Carrano

103 A. 753 | Conn. | 1918

There is no ground for the assumption of the trial court that Rivkin did not have authority to make a contract for the future delivery of the flour as set forth in the memorandum of sale. Rivkin's authority was that of an outside salesman of a wholesale grocery house, with unrestricted powers of sale and collection. "It is a familiar principle of the law of agency, that every authority given to an agent, whether general or special, express or implied, impliedly includes in it, and confers on such agent, all the powers which are necessary, or proper, or usual, to effectuate the purposes for which such authority was created. It embraces the appropriate means to accomplish the desired end. This principle is founded on the manifest intention of the party conferring such authority, and is in furtherance of such intention." Benjamin v. Benjamin, 15 Conn. 347, 356. "An agent clothed with general power to sell personal property without restrictions, has implied authority to select the purchaser, to fix the price, and to agree upon such ordinary incidental matters as the time and place of delivery, and the other ordinary and usual terms of a sale." 1 Mechem on Agency (2d Ed. 1914) § 854. See also 1 Clark Skyles on Agency (1905) § 245.

We cannot presume that Rivkin, the defendants' agent, was not authorized to make delivery of the merchandise sold by him unless such deliveries were made in the same manner as salesmen who carried their goods with them. His employment as an outside salesman by a wholesale grocery house necessarily implied authority to make contracts for the future delivery of the goods which he sold. This was indispensable in the business which he was employed to conduct.

The defendants also insist that the place of delivery mentioned in the memorandum of sale, which states that it was "to be taken from the car," is so indefinite that the contract fails to meet the requirement of the statute of frauds. In the absence of any explanation, the meaning of this term is hardly intelligible, but the judge of the court below was not at liberty to pronounce this writing void until he had brought to his aid in its interpretation all the light afforded by the collateral facts and circumstances. This could have been done by parol. Kilday v. Schancupp, 91 Conn. 29,32, 33, 98 A. 335; Shelinsky v. Foster, 87 Conn. 90,97 87 A. 35. Where an agreement in writing is expressed in technical or incomplete terms, parol evidence may be admissible to explain that which, taken alone, would be unintelligible, when such explanation is not inconsistent with the written terms of the instrument. Thus, if the language of the instrument is applicable to several persons, to several parcels of land, to several species of goods, to several monuments or boundaries, to several writings; or the terms be vague and general, or have divers meanings, as "household furniture," "stock," "freight," "factory prices," and the like; in all these and the like cases, parol evidence is admissible of any extrinsic circumstances, tending to show what person or persons, or what things, were intended by the party, or to ascertain the meaning in any other respect. 1 Greenleaf on Evidence (16th Ed.) § 288, p. 416. In the case of Barrett Mfg. Co. v. D'Ambrosio,90 Conn. 192, 198, 199, 96 A. 930, upon which the defendants rely, a material provision had been entirely omitted from the written document. We there held that this omission could not be supplied by oral proof.

Several questions are presented by the appeal, but we have occasion to consider only two of them. One, whether the court erred in holding that the agent, Rivkin, had no authority to make a contract for the future delivery of the flour as set forth in the memorandum of sale. This we have already decided adversely to the defendants. The record discloses that the court below struck out the memorandum of sale which lay at the very foundation of the plaintiff's case, and in effect nonsuited the plaintiff. It also appears that the principal reason given by the trial court for ruling out the agreement of sale was as follows: "The memorandum does not purport to be a sale, a contract for a future sale of flour, but purports to be a contract or rather a sale of existing flour; and, therefore, under the statute of frauds, or § 4 of the Sales Act [Public Acts of 1907, Chap. 212], neither this witness nor any other witness can prove by parol that this contract was a contract for the sale of flour to be delivered at some future time, nor can this witness nor any other witness give oral testimony to add to or further define the terms of the contract." In this there is error.

In view of these considerations we find no occasion to consider the other assignments of error.

There is error and a new trial is ordered.

In this opinion the other judges concurred.