65 So. 696 | Ala. Ct. App. | 1914
It is settled in this state that a traveling salesman of merchandise making sales, or taking orders, by sample for future delivery and payment has no implied authority to collect from the purchaser the money agreed to be paid by him. — Simon & Son v. Johnson, 101 Ala. 368, 13 South. 491. In this case, not only was there no implied authority for the salesman to collect, but there was direct, undisputed evidence to the effect that the traveling salesman, Mays, was without authority to collect from purchasers to whom he sold goods or from whom he took orders for his principal, the appellant, who brought this suit in the court below against the appellee for merchandise sold to him
The settled rule of law Ave have above referred to seems to have been recognized by the court below, but it allowed the defendant to testify to a payment as made by him, the purchaser, to the salesman, Mays, for his principal on the theory (as would appear from the court’s rulings and the oral charge set out in the transcript) that it became binding on the principal either because the' unauthorized act of the agent was subsequently ratified and sanctioned by the principal, or because a general and known custom or usage in the course of business dealings betAveen the parties gave validity to the act of the agent in receiving the money for his principal.
The evidence set out in the bill of exceptions is wholly wanting in showing a ratification by the principal of an unauthorized act by its salesman, Mays, in receiving the payment. The evidence is also entirely unsatisfactory to establish a general and known custom or usage that would .authorize the purchaser to make payment to the salesman that would bind the principal or estop it from denying the authority of Mays to make the collection testified to by the defendant.
The defendant is shoAvn to have had continuous business dealings with the plaintiff for more than two years prior to the time he claims to have made this payment, buying goods from it through its salesman, Mays, which were shipped from the plaintiff’s wholesale house in Nashville, Tenn., to the defendant’s place of business in Alabama. During the entire course of these dealings throughout all this time, the defendant had never on any other occasion paid any part of the purchase money for the goods bought by him, to Mays, but, on the contrary, had always sent the numerous
During the period of the two years or more prior to the time of the payment testified to as having been made by the defendant to Mays, while the defendant’s dealings with Mays are shown to have been confined to transactions in which Mays was dealt with solely in his capacity as the plaintiff’s traveling salesman, it does not appear, from the evidence offered, to show a usage or custom existing in the community in which the defendant transacted business during that time that might be relied upon as impliedly authorizing the plaintiff’s salesman, Mays, to collect for it; that he made any other collection than on the one isolated occasion when a payment was made to him by one E. G. All-dredge, and even that instance is not shown to have been known to the defendant at the time the payment was made by him to Mays.
It is our conclusion that the uncontradicted evidence shows that the salesman, Mays, had no express or implied authority to collect the money testified to by the defendant as having been paid to him for the goods purchased. There is no evidence showing such authority resulting from a known general usage of trade, or from the particular dealings between the parties.
Numerous rulings of the court on the evidence, and in refusing written instructions, as well as parts of the oral charge of the court to which exceptions were reserved and are made the basis of the assignments of error, are not consistent with our holding as above announced, and a reversal of the judgment must necessarily result. Other matters presented do not seem to
Reversed and remanded.