J. B. Owens Pottery Co. v. Turnbull Co.

| Conn. | Jun 4, 1903

The judgment rendered in this case was amply justified by the facts found. It is quite true that the written instrument which evidenced the relations between the defendant and Gilbert did not expressly authorize the latter to pledge the credit of the former. The agreement, however, had for its purpose the conduct of a mercantile business to be carried on in the defendant's store, under its name, and to all outward appearances as its business. This undertaking necessarily involved purchases of stock. The agreement was explicit in requirements which should give to the business to be conducted by Gilbert every appearance of a department of the defendant's business. The effect to conceal from the public Gilbert's true relation as principal is manifest throughout the document. To make this result the more secure, there follows the sweeping provision that it should be kept strictly confidential and should not in whole or in part be disclosed to any person. The effect of this provision is apparent. By force of it it is not easy to discover why the right to use the name and credit of the defendant in the purchase of necessary stock was not impliedly conferred upon Gilbert, unless, indeed, it be upon the theory that no credit at all was to be used.

It is a little hard to conceive of a mercantile business, of the magnitude and character of that apparently contemplated by these parties, being carried on under modern conditions, without some degree of credit for purchases. Let us, however, assume that such a method was intended to be employed with respect to this business, and give the defendant the full benefit of its contention that Gilbert was without authority, express or implied, to purchase in its name or upon its credit. On January 3d 1902, Gilbert, purporting to act for the defendant, ordered of the plaintiff the goods which are the subject of this suit. Credit for them was given to the defendant alone. Within a few days the defendant was informed of Gilbert's purchase and that it was a credit purchase, by the receipt, in the ordinary course of mail, of a bill of the goods with terms of sale, which was mailed to the defendant on the day of purchase. Pitts v. Hartford L. A. Ins. Co., 66 Conn. 376" court="Conn." date_filed="1895-06-22" href="https://app.midpage.ai/document/pitts-v-hartford-life--annuity-insurance-6583528?utm_source=webapp" opinion_id="6583528">66 Conn. 376. These facts alone, in view of Gilbert's agreement as to secrecy, sufficiently advised the defendant that the credit given was, presumably at least, credit to it, the only party whose name could be divulged. That the bill was made out to it and sent to it emphasized and made certain the otherwise reasonable conclusion. The arrival of the goods two weeks later, addressed to it, was an additional reminder of what had been done. Notwithstanding the knowledge thus derived, the defendant kept silence. It did nothing to advise the plaintiff of the true situation during the two weeks which elapsed while the goods were in course of shipment. The goods came and were received by the defendant without a word of warning. The silence was continued as the weeks lengthened into months, and until after Gilbert's affairs had suffered a hopeless collapse and all means of protecting the plaintiff's interests had disappeared. A clearer case of ratification by silent acquiescence could scarcely be stated. The defendant's knowledge of the material facts was complete; the duty to speak manifest; and the silence without excuse was unreasonably prolonged and prejudicial to the plaintiff, as the court with ample justification has found. Mallory v.Mallory Wheeler Co., 61 Conn. 131" court="Conn." date_filed="1891-06-01" href="https://app.midpage.ai/document/mallory-v-mallory-wheeler-co-3322570?utm_source=webapp" opinion_id="3322570">61 Conn. 131.

In view of our reasons for our conclusions, it is unnecessary to notice the defendant's motion to add to and correct the finding, further than to observe that paragraph 81 is justified by the evidence, and that paragraph 64, in its portion excepted to, only states a fact apparent in the written agreement which is made a part of the finding.

There is no error.

In this opinion the other judges concurred.