78 P. 665 | Or. | 1904
delivered the opinion.
But a single question is presented for our determination, which is whether Diener was authorized by the plaintiff,
1. A traveling salesman, known in modern business parlance as a “drummer,” derives no implied authority from the nature of his employment to sell the samples with which his principal intrusts him as an aid to the discharge of the duties he engages to perform. Being essential and necessary to the performance of the salesman’s undertaking, no reasonable inference can arise' that he is to dispose of them, for, if he does, he is left without available means for exhibiting the goods of his employer. Nor is the principle that the agent is entitled to employ all necessary and usual means of executing the authority imposed adequate to the purpose: Reinhard, Agency, § 463; Mechem, Agency, § 343 ; Savage v. Pelton, 1 Colo. App. 148 (27 Pac. 948); Kohn v. Washer, 64 Tex. 131 (53 Am. Rep. 745).
2. The contract has appended a schedule, which is denominated “ Suggestions and Instructions to Salesmen,” and it is essential that the two instruments be read as one, in order to determine the intendment of the parties. Defendant’s counsel rely upon the following paragraphs as
This in the contract proper:
“ It is distinctly understood and agreed by the party of the second part, that in accepting and receipting for samples, he shall return all of same to the party of the first part, or sell them under the instructions of and according to the established rules of this house and account for the same in cash or an itemized statement, naming the firm they are to be charged to ; and the party of the second part agrees to .pay cash for all samples unaccounted for at the end of the year, or at the termination of this contract.”
This in the schedule:
“4th. Samples are charged as cash and must be paid for by salesmen, unless returned or their sale properly accounted for. Samples sold must be entered on yellow sample department sheets and marked delivered. Otherwise you will not receive proper credit. .Never leave samples of any kind about depots, hotels, or with,irresponsible parties. Have them with you or in responsible hands, properly checked.”
Three other paragraphs in the schedule are referred to as essential to an intelligent interpretation of the above. They are the following :
“14th. Sell no goods for future' delivery unless under instruction from the house.
“ 16th. If there are any of these instructions that you do not fully understand, get explanation before leaving the house.
“ 17th. We have made these suggestions and given these instructions to salesmen so they may fully understand our wishes regarding the manner of doing our business upon the road.”
It is conceded that Diener received no instructions from the house relative to the samples, or the sale or disposal thereof, except such as were contained in the schedule.
It is argued that the fourteenth paragraph of the schedule, namely, “sell no goods for future delivery unless under instructions from the house,” is a positive direction, unambiguous in any particular, and that, if the parties meant that samples should not be sold except under specific instructions, then they would have said so in as direct language; hence we are to infer that instructions for the sale of samples were intended. But this does not follow. The language of the paragraph referred to is, it must be conceded, more direct than that setting forth Diener’s agreement to sell under the instructions; yet it appears to us that its purpose is not more clear. The plain meaning of the agreement that he shall sell' under instructions is that he shall sell only when he has them, and, none being found in the schedule, it must be concluded that he sold without the intended or requisite authority; as measured by the terms of the contract. Clauses 16 and 17 cast no light that aids us in construing the contract. They are simply designed as admonitions to the salesman to obtain a full understanding of the instructions before entering upon the discharge of his duties and obligations, so that the interests of the house may be better subserved in accordance with its manner and ideas of transacting business.
This disposes of the case. Diener being without authority or power under the contract to dispose of these samples, defendant obtained no title by his purchase from