41 So. 675 | Ala. | 1906
There are many grounds in the assignment of errors, which, on account of undisputed facts in the case, it will not be necessary for us to consider. The plaintiff was a corporation in the state of North Carolina, doing business as á manufacturer and seller of chairs. It had in its employ one Smathers as a traveling salesman of its products. Smathers, in April, 1903, in the course of his employment as such salesman, took from the defendant, who was engaged in the furniture business in Mobile, Ala., an order for a bill of chairs amounting to $270. This order stipulated that the chairs were to be shipped in installments. It was forwarded by Smathers to the plaintiff.. It is conceded that the plaintiff accepted this order and made shipment on it of all the chairs stipulated for in it. It was also conceded by plaintiff that the defendant had, before the commencement of this suit, paid all that was to be paid on the order except $90. The defendant contended that by reason of discounts agreed to be allowed he owed only $81, and the verdict of the jury is in accord with this contention. So that, so far as the amount due on the plaintiff’s claim is concerned, if there was error in the rulings of the court on the admissibility of evidence to support plaintiff’s claim, certainly it was not prejudicial to the appellant.
But the defendant pleaded a set-off. His contention on the trial was that on the 2d day of September, 1903, he gave to Smathers, the salesman of plaintiff, an order for chairs; that the plaintiff received the order, but never shipped the chairs, and declined to do so. Defendant insisted that this order, when given to Smathers, was a complete contract, binding plaintiff to ship the chairs, and the plaintiff breached it. The defendant contends that, after Smathers received his last order, chairs such as were specified in the order advanced in price, and he, on account of plaintiff not shipping the chairs on the last order, was damaged in the sum of $48.67; that being the difference between the price named in the order and the price when the order, according to his insistence, should have been filled. At the conclusion of defendant’s evidence the court on motion of the plaintiff,
The precise question presented by this record has not been determined by this court. In the case of Clough v. Whitcomb, an order was taken for goods by a salesman having authority similar to that with which the salesman in this case was clothed. The trial court charged the jury: “If Clark (the salesman) made the contract with the defendant for the goods, and the plaintiff agreed to give Clark a commission on said goods, then Clark was Ms agent to sell said goods.” The appellate court, in holding the instruction bad, said: “A commission allowed to one who solicits orders upon sales effected through such orders does not constitute him or prove him to be an agent with authority to make absolute contracts of sale.” — Clough v. Whitcomb, 105 Mass. 482; Bensberg v. Harris, 46 Mo. App. 404; Finch v. Mansfield, 97 Mass. 89; Burbank v. McDuffee, 65 Me. 135. So in this instance Smathers “did not sell the goods, or even contract to sell them.' When the defend
. We do not say, however, that the acceptance must be a formal one. It is -insisted that, the. plaintiff having accepted and filled the previous order given to. the plaintiff’s salesman and having held the last order from some time in the eai’ly -part of September until November 12th, the plaintiff must be held to have accepted the or-
The court properly excluded the evidence of custom that was offered by the defendant. Without conceding that evidence of custom would be competent to supply mutuality, the plaintiff in this instance was domiciled in North Carolina, and it cannot be presumed that it had knowledge of the custom in Mobile, Ala.; and this on the face.of the evidence offered was the limit of the territory of the custom. Moreover, the custom offered
It results from the foregoing considerations that no •error prejudicial to the defendant was committed by the trial court, and the judgment will be affirmed.
Affirmed.