Hillyard v. Hewitt, 120 P. 750

Hillyard v. Hewitt

120 P. 750 | Or. | 1912

Mr. Justice McBride

delivered the opinion of the court.

1. Where a contract, complete in its terms, is shown to have been executed by the parties, it is clear that one will not be permitted to add other terms by parol evidence ; but this rule does not prohibit a party from showing that what appears to be a contract is not so in fact, but is merely a part of a larger transaction, which has never been completed. Lawson, Contracts (2 ed.) §§ 382, 383; Greenleaf, Evidence, (16 ed.) § 284a; Branson v. Oregonian Ry. Co., 11 Or. 161 (2 Pac. 86) ; Allen v. Konrad, 59 App. Div. 21 (68 N. Y. Supp. 1057).

*622. The testimony tends to show that the contract contemplated included two things: (1) The assigning to defendant of an exclusive agency for the sale of plaintiffs’ goods; and (2) the giving by defendant of an order for the goods which he contemplated selling. Plaintiffs’ agent procured defendant’s signature to the order, and then vanished, without making the assignment, and plaintiffs refuse to perform that part of the - agreement which was the procuring cause of defendant’s signature. Here is no complete agreement, but merely half of an agreement.

3. Plaintiffs cannot send out an agent and take advantage of that part of his agreement which is favorable to them, and repudiate the remainder. La Grande National Bank v. Blum, 27 Or. 216 (41 Pac. 659). For the purposes of this case, therefore, Hillyard must be treated as the general agent of plaintiff.

4. Parties dealing with an admitted agent of another have a right to assume, in the absence of anything indicating a contrary state of affairs, that his agency is general. Aerne v. Gostlow, 60 Or. 113 (118 Pac. 277) ; Austrian & Co. v. Springer, 94 Mich. 343 (54 N. W. 50: 34 Am. Rep. 350).

The judgment of the circuit court is affirmed.

Affirmed.

Mr. Justice Burnett took no part in this decision.