73 Mo. App. 1 | Mo. Ct. App. | 1898
Lead Opinion
In May, 1895, Perry, Oldham & Company were merchants doing business at McKinney, Texas, and the firm of Mabray, Oldham & Company were doing a mercantile business at Bonham, Texas. In that month Thomas S. Price was a traveling salesman for the Kelly-G-oodfellow Shoe Company in that part of the state of Texas embracing McKinney and Bonham, and on the fifteenth day of May, 1895, he called upon Mabray, a member of both firms, at his place of business at Bonham, with ten or fifteen samples of shoes, with a view of selling the firm shoes for Kelly-G-oodfellow Shoe Company; Mabray selected a shoe marked “Korker” from his samples, and bought
‘.‘Bonham, Tex., May 15, 1895.
“Sold to Perry, Oldham & Co.,
Nov. 1, McKinney, Texas.
217 12 Mens Bf. Bals. 6-10 .1.00
215 12 “ “ “ 6-10.1.00
216 36 “ “ Cong. 6-10 6-11.1.00
218 60 “ “ “ 6-10 6-11.1.00
“Kelly-Goodfellow Shoe Co.
“Thomas S. Price.”
“Bonham, Tex., May 15, 1895.
“Sold to Mabray, Oldham & Co.,
Nov. 1, Bonham, Texas.
217 Mens Bf. Bals 6-10. 1.00
215 “ “ “ 6-10.1.00
216 “ “ Cong. 6-10 6-11.1.00
218 “ “ “ 6-10 6-11.1.00
“Kelly-Goodfellow Shoe Co.,
“Thomas S. Price.”
On August 9, 1895, the bill of sale executed to Perry, Oldham & Company was by that firm assigned in writing to the firm of Mabray, Oldham & Company. Duplicates of these bills of sale were forwarded to Kelly-Groodfellow Shoe Company at their place of business, so as to inform them of the sale or order, and to enable them to ship the goods. The terms of sale were that the goods should be shipped by June 10, and paid fpr on November 1, 1895. The Kelly-G-ood-fellow Shoe Company repudiated the order or bills of sale, but offered to fill the bills at $1.10 per pair. This offer the plaintiffs declined to accept, and brought suit for damages alleged to have accrued on account of the failure to comply with its alleged contracts made by Price. The defense relied on was that Price had no authority to make an absolute sale, and that the extent of his authority was to solicit trade and take orders for
A. S. Gaines testified that he was acquainted with the custom of the St. Louis wholesale dealers, regarding the authority of their traveling salesmen in selling goods to the retail trade in Bonham, Texas; that these salesmen have authority to bind their employers as for prices of goods, but not as to credit or the commercial standing of-the firm buying the goods; that he was a dealer and had made orders or purchases through Price of the defendant, all of which had been filled, and that he had made a purchase of the defendant in 1895, through their salesman Price. D. M. Bates testified that he was a traveling salesman selling boots, shoes, and other goods for about seven years for St. Louis wholesale houses, and that when he was not otherwise specially instructed he had authority to fix the price and time of payment of the goods sold by him, and that in his experience no house he represented had ever refused to ship the goods he had sold when the credit of the buyer was good; that he knew Thomas S. Price, and that he was a traveling salesman in Texas for Kelly-Groodfellow Shoe Company. Groves Mabray, one of the plaintiffs, testified that for the previous two years he had bought boots and shoes from defendant through Thomas S. Price, who had been their traveling salesman for two years previous to making the sales to him; that neither Price nor the defendant informed him prior to May 15, 1895, that Price’s authority was limited to take orders and submit them to defendant; that the goods he had bought from Price
*7 “St. Louis, May 20, 1895.
“Messrs. Perry, Oldham & Co., McKinney, Texas.
“Deab Sibs: — We regret that we can not accept your order for ten cases men’s KorkerBals. and Cong, to be shipped June 10th and payable November 1st at $1 per pair — the very best that we could take this order at to-day, is $1.10 per pair with the bill payable October 1st, and we can not hold this price open longer than time enough to receive your reply. If you wish us to book the order at $1.10 payable October 1st, will you kindly wire us at our expense on receipt of this letter. We have only a limited supply of these goods and when we have sold out what we now have contracted for, will have to still further advance the price. Awaiting reply, we are,
“Tours truly,
“Kelly-G-oodeellow Shoe Co.,
“Pee Chas. H. Hoke, Sec’y.”
A like letter of the same date was addressed to Mabray, Oldham & Company, at Bonham. These letters were answered by a telegram, stating that the purchasers expected the goods at prices and terms at which they were bought, and also by letter to the same effect. On May 27, Kelly-Goodfellow Shoe Company again wrote the plaintiffs that they could not ship the goods at the prices fixed by Price, and that the shoes were then worth $1.25 per pair wholesale. In answer to this letter plaintiffs, on May 29, addressed the following letter to defendant:
“Bohham, Tex., May 29th, 1895.
“Messrs. Kelly-Goodfelloiv Shoe Go., St. Louis, Mo.
“Deab Sibs: — Tours of May 27th, 1895, to hand. In reply we must say that we are surprised beyond measure at its contents.
“Coming from business men as you are makes it more surprising. Suppose some legal representative*8 of some eastern factory should call at your place of business and sell you 100 cases of shoes at a price, give you a copy of the order properly signed, dated, etc., would you not hold them to it? Most assuredly you would. I bought the goods in good faith from your Mr. Price, and he sold them to me in good faith. Mr. Price does not claim any mistake in the price, terms, etc., and you admit in yours of May 20th that you have the goods and refuse to ship them on the terms of your legal representative. The order was not given on conditions of any kind, neither was given subject to your approval, but was a straight out sale. Place yourself in my position, and you will readily see the injustice you are trying to do us. We must reaffirm our telegram and letter of twenty-fourth and insist on you shipping goods according to terms, prices, etc., as we bought them.
“Yours truly,
“Mabray, Oldham & Co.”
On May 30 the defendants wrote plaintiffs as follows:
“St. Louis, May 30th, 1895.
“Messers. Mabray, Oldham & Go., Bonham, Tex.
“Dear Sirs: — We are in receipt of your esteemed favor of the 29th inst. and note contents. The orders that you gave Mr. Price were cancelled some days ago, and we notified you promptly on receipt of them, to that effect. We are sorry that we can not accommodate you by filling them — we gave you our reasons for declining the orders, and must again respectfully state that we will not fill the orders taken by our salesman, Mr. Price — orders taken by our salesmen are always subject to our approval, always have been, and your demand is the first time that our right to decline an order has ever been questioned. Now, you can rest*9 assured that we do not desire any controversy with you on the point, but at the same time we are fully posted as to our rights, and while we should very much regret any further controversy, we must again reaffirm our previous letters to the effect that these orders were respectfully declined, and that we should not ship the goods. "With best regards we are,
“Yours truly,
“Kelly-G-oodeellow Shoe Co.
“Per Chas. H. Hoke.”
Some other correspondence was read in evidence hut of a character not necessary to be noticed here.
The bills of sale made and delivered by Price to the plaintiffs are in form and A substance absolute bills of sale and are binding upon the Kelly-Goodfellow Shoe Company, if Price had the authority to make them as their agent. In Turnbull v. N. W. Terra Cotta, 49 N. W. Rep. 229, it was said: “An agent employed to solicit orders for goods must, as to innocent third persons dealing with him, be deemed to have authority to accept the orders, and to enter into contracts of sale binding on his principal, where that is the general usage in the business. In Mills v. Berla, 23 S. W. Rep., it was held that on the question whether an- agent had authority to make a contract which was recognized by his principal, it may be shown that he had made similar contracts before. In Franklin v. Ins. Co., 52 Mo. 461, it is said: “The authority of an agent need not necessarily be proven. by an express contract of agency, but may be proved by the habit and course of business of the principal.”
In Edwards v. Thomas, 66 Mo. 468, it is said: “The authority of the agent may be inferred from the nature of the employment.” Mechem on Agency,
Dissenting Opinion
{dissenting). — It seems to me that the discussion in the opinion of my associates is apart from the evidence in the case. We have no concern with the general rule of law as to the express or implied authority of agents. The authority of Price was fixed by custom or usage of trade. It is only for us to determine what the custom was and its legal effect. The plaintiffs’ evidence tended to prove that under a general custom which prevailed in the state of Texas, traveling, salesmen for St. Louis houses had authority to fix the price of the goods and the terms of the sale; that in the
This question, however, is an immaterial one, as I have already stated, since all the evidence introduced by plaintiffs tended to prove that according to the usage
The practical result of the foregoing discussion is to make Price a solicitor of orders for the sale of goods, subject to the approval of the defendant. It is true that in naming prices and the time of credit he was not bound by an ironclad rule. This discretionary power could only have become material if the defendant had in any manner signified an intention to ratify plaintiffs’ order.
In such a case the defendant would have been bound, although it was not actually advised that its salesman had priced the goods below their market value and had extended the customary time of payment. It would be conclusively presumed that in making the ratification the defendant had in mind this discretionary power on the part of Price. For the foregoing reasons I must dissent from the conclusion reached by a majority of the court.