83 W. Va. 267 | W. Va. | 1919
The important inquiries arising upon this writ of error to a judgment for the defendant, in an action of assumpsit for the price of merchandise sold and delivered, are, (1), whether power to make a conditional sale of merchandise is within the apparent authority of a traveling salesman; (2), if so, whether such authority is unlimited; and, (3), whether the evidence sustains the verdict.
Not having produced the order on which the shipments were made nor proved any excuse for non-production thereof, the plaintiff introduced testimony tending to prove that it was unconditional in its terms. On the other hand, the two members of the defendant firm and the Avife of one of them, sAvear positively that the goods Avere purchased, or the order given, with the understanding and agreement that the defendant should have the right to return them, if they should be found to be unsatisfactory. They further testified that the shoes were very unsatisfactory and caused them a great deal of trouble AAÚth their customers, it haAÚng been necessary to make good a great many shoes returned on account of se
The ease was submitted to a jury, without instructions, and they returned a verdict for the defendant, on which the judgment was rendered, after the overruling of a motion for a new trial.
The prevailing, if not the universal, holding of the courts is that it is within the scope of the apparent authority of a sales agent, to stipulate with the vendee that the property sold may be returned to the vendor, if it is not satisfactory to the purchaser. Of course a vendor may agree with the vendee, that the latter shall take the goods upon trial and test them out and return them, or the unused portion of them, in case they prove to be unsatisfactory, for such a contract is neither illegal nor contrary to public policy. The liberty of contract obtaining in this country enables the owner either to give or withhold from his agent power to make such a contract on his behalf; and, if an agent should make it for his principal, without authority, he would violate his agreement with his principal, but, according to the current of judicial authority, he would nevertheless bind his principal to the vendee, if the-vendee had no knowdedge of the limitation upon the agent’s apparent authority. Secret instructions to an agent, inconsistent with his apparent authority, are not binding upon third parties dealing with him. Union Bank & Trust Co. v. Long Pole Lumber Co., 70 W. Va. 558; Bank v. Ohio Valley Furniture Co., 57 W. Va. 625; Rohrbough v. Express Co., 50 W. Va. 149; Clark v. Gordon, 35 W. Va. 735; Bass Dry Goods Co. v. Granite City Mfg. Co., 119 Ga. 124; Ludlow-Saylor Wire Co. v. Fribley Hardware Co., 67 Kan. 710; Towle v. Leavitt, 23 N. H. 360; Clews v. Reilly, 53 Hun. (N. Y.) 636; Hatch v. Taylor, 10 N. H. 538; Mechem, Agency, sec. 854. An agent has implied authority to fix the price and terms of sale and agree upon such incidental matters as the time and place of
As to the existence of a stipulation for return of the goods, if found to be unsatisfactory, there is no preponderance of evidence against the verdict. It is all oral and conflicting, the witnesses for the plaintiff only denying the authority of the salesman to make a conditional sale and the existence, of a return provision in the order, and three witnesses swearing the sale was a conditional one, while the law supplies the agent’s authority. While they do not define it, the witnesses for the plaintiff admit its maintenance of a return goods department. The letter in which the defendants promised to pay is general and indefinite in its terms and purport. Hence, it is not necessarily inconsistent with their position. As the order for the goods was not produced nor its complete contents established, there is no proof of a written contract. If it had been put in evidence it might have been no more than a memorandum or an incomplete contract, not precluding oral proof of terms and conditions not stated in it. Rymer v. South Penn Oil Co., 54 W. Va. 530; Johnson v. Burns, 39 W. Va. 658; Cream City Glass Co. v. Friedlander, 84 Wis. 53 36 Am. St. 895.
The evidence is insufficient, however, to sustain the kind of a return contract the defendants claim. It is general and indefinite in its terms, and, properly construed, it means that the purchasers were to take the goods upon trial, with the privilege of return after a reasonable time for a test of their fitness for the trade for which they were conditionally
An agreement for an unlimited and unrestricted right of return, if made, was not within the implied authority of the agent. Under it, he could do only what was reasonable and usual. Power to stipulate for a limited right of return constitutes no ground of argument for authority to allow such right without a limit. The reasonableness of a stipulation may depend upon its extent as well as its character or subject matter, and there is no authority for the proposition that "an agent has implied power to put an unreasonable provision in his principal’s contract.
It follows from these principles and conclusions, that the
Reversed, verdict set aside, neiv trial aivarded.