Fulton v. Sword Medicine Co.

40 So. 393 | Ala. | 1906

SIMPSON, J.

This was a suit based upon a written order, signed by the defendant and addressed to the plaintiff, by which the defendant ordered certain goods, agreeing therein to pay certain specified prices, and in. said order it was stated, among other things, “that none of the medicine shall be returned for credit,” and closes •with these words: “I, or either of us, accept this order on terms stated above. There is no verbal agreement aside from this order, of which I have a duplicate.” By various pleas, to which there were demurrers, the defendant sets up, in defense to the action, that the plaintiff’s “agent, salesman, or drummer,” as an inducement to him to buy the goods, told him that, “if he would handle the goods, the plaintiff would guarantee the sale of the goods,” and represented to him that, if he would sign the order blank for these goods, he would write plaintiff a letter, to accompany the order, stating to plaintiff not to ship defendant these goods, as embraced in the order, unless they would guarantee the sale of the same to defendant. In one of the pleas the defendant alleges that when he signed the order he thought it was merely an agrément about some advertising that was to be done.

The order signed by defendant, when accepted by the plaintiff, constituted a contract, which the parties had reduced to writing, and the defendant could not contradict the same by parol testimony. While it is true that, where goods are sold by an agent, the general rule is that, if the principal “seeks to avail himself of the benefits of the contract made by his agent, he is bound by the representations made by the agent.” — Gilliland v. Dunn, vcf Ala. 327, 34 South. 25 ; Williamson v. Tyson, 105 Ala. 644, 17 South. 336, yet this does not contravene other recognized principles of law. “The doctrine of apparent authority can be invoked only by one who has been misled to his detriment by the apparent authority of the agent.” — Patterson v. Neal, 135 Ala. 482, 33 South. 39. And Avhen a traveling salesman sells goods to a customer and the customer signs a written order to the principal, stating distinctly, as in this case, that “none of the goods shall be returned for credit,” and that “there is no verbal agreement aside from this order,” it shoAVS notice to him that the agent has no authority to make any verbal agreements varying the terms of the Avritten contract; and, if he agrees Avith the agent that 'the agent is to inform the principal that he is not to ship the goods unless he agrees to contradictory terms, the principal is not bound thereby, unless the agent informs, him before the goods are shipped. The defendant signed the contract and must be presumed to haAre known its contents.

The statement in the complaint as originally filed that the account Avas verified Avas sufficient, without repeating it again Avhen the complaint AA[as amended in the circuit court.

The written instrument was “the instrument sued on,” and properly admitted without further proof, there being no sworn plea of non est factum.

Under the latitude allowed in cross-examination, and as the witness was the defendant and had testified that he did not know that the plaintiff company refused to accept the $7.50, it was not error to allow the plaintiff to test him further by asking, “You have been informed that the Sword Medicine Company refused to accept the $7.50, haven’t you?”

The bill of exceptions does not show that it contains all of the evidence, and we cannot say that the court erred in rendering the judgment.

The judgment of the court is affirmed.

Haralson, Dowdell, Anderson, and Denson, J.J., concur.