144 Ark. 108 | Ark. | 1920
(after stating the facts). It is earnestly insisted by counsel for the plaintiff that the court erred in giving instruction No. 7, which is as follows: “If the plaintiff authorized or knowingly permitted its factor, Perkins, to sell ‘overs,’ or any other of its goods, or his own goods, on his individual account as individual owner to customers, and said Perkins sold the bacon in question to defendant in that way, and the defendant, acting in good faith, and in ignorance of the rights of the plaintiff, and in the exercise of such care as an ordinary prudent person would use under the circumstances to ascertain whether .said Perkins was selling his own goods or those of the plaintiff, and at the time believed Perkins to be the true owner, or authorized to sell in his own name, then you will find for the defendant.”
We think counsel for the plaintiff is right in his contention. The court in giving the instruction seems to have proceeded upon the theory that Perkins was a factor or commission merchant. Such is not the case. A factor is generally defined to be an agent who has a business, as well as goods, or merchandise consigned and delivered to him by, or for his principal for a compensation commonly called a commission. 19 Cyc. 115; 11 R. C. L. 753; Story on Agency (8 ed.), § 33, and Story on Sales, § 91.
The presumption of an authority to sell in these cases is inferred from the nature of the business of the agent, and it fails when the case will not warrant the presumption of his being a common agent for the sale of property of that description. 2 Kent’s Com. (14 ed.), *622. A factor or commission merchant then is one engaged in an independent calling and is one who buys and sells on commission and who may sell any personal property which is left with or consigned to him for sale.
In discussing the difference between a factor and a broker or agent, the Supreme Court of the United States said: “The difference between a factor or commission merchant and a broker is stated by all the books to be this: A factor may buy and sell in his own name, and he has the goods in his possession; while a broker, as such, cannot ordinarily buy or sell in his own name, and has no possession of the goods sold.” Slack v. Tucker & Co., 23 Wall. (U. S.) 321.
In the case at bar Perkins was not in the pursuit of an independent calling and did not have the authority to sell meat for persons generally, but only had the authority to sell the products of the plaintiff on a commission. It is true he sold the “overs,” as he called them, on his own individual account, but, he did not have the authority to sell meat generally for persons consigning same to him or leaving it in his possession. He did not attempt to exercise such authority. He was the exclusive agent for the plaintiff and his course of business clearly constituted him as the plaintiff’s broker or agent as contra-distinguished from a factor, or commission merchant. The president of the defendant company knew that Perkins was the broker or agent of the plaintiff and that he had no right to sell the plaintiff’s goods for himself. According to the evidence adduced in favor of the plaintiff, he did not authorize Perkins to sell “overs” or any of its goods on his own account.
It is true that, according to the testimony of Ray Perkins, the manager of the plaintiff company knew that the quantity of the meat shipped by it. to Perkins would gain in weight on account of the salt put on it, and that he told Perkins that the company would be satisfied to receive the amount of meat it shipped to Perkins, thereby tacitly giving him the right to use what was called the “overs” on his own account. The fact, however, that the plaintiff company might permit Perkins to sell “overs,” or his own goods on his individual account, did not warrant the jury in finding for the defendant. The meat in question was not ‘ ‘ overs, ’ ’ but was meat of the plaintiff for which Perkins had exchanged “overs” without the knowledge or consent of the plaintiff. The president of the defendant company admitted that he knew that Perkins was the broker or agent of the plaintiff and that he had no right to sell the plaintiff’s goods in his own name. Perkins was not a factor or commission merchant and had no right to sell the products of the plaintiff in his own name. Therefore, the court erred in assuming to the jury that Perkins was a factor and in telling the jury to find for the defendant if it should further find that the plaintiff authorized or knowingly permitted its factor, Perkins-, to sell “overs,” or any of its goods, or his own goods on his individual account. Hence the instruction was erroneous and necessarily prejudicial to the rights of the plaintiff.
For the error in giving instruction No. 7, the judgment must be reversed and the cause remanded for a new trial.
