Mange-Wiener Co. v. Patton Worsham Drug Co.

27 Pa. Super. 315 | Pa. Super. Ct. | 1905

Opinion by

Henderson, J.,

The assignments of error relate to the charge of the court and the refusal to affirm the defendants’ points. A careful examination of the charge, in the light of the evidence, leads us to the conclusion that the case was as favorably presented for the defendants as the evidence would justify. There was no evidence of express authority in Plerz to rescind the contract. No implied authority to rescind and accept a return of the goods is to be inferred from the mere fact of his authority to sell: Mechem on Agency, sec. 360. The extent of his power became a question of fact. The jury was clearly instructed that if Herz had authority to make an arrangement for the return of the goods the plaintiffs were bound by his action. They were further instructed that the defendants had a right to return the goods if they proved to be unsatisfactory to the trade, and to determine whether, if they were unsatisfactory, tender was made to the plaintiffs or some one authorized to act for them. The evidence did not authorize the court to declare as a matter of law that the agent had implied authority to rescind the contract by virtue of his power as a broker or salesman, or that he had express power so to do. The authorities cited by the learned counsel for the appellants as to the continuance of the authority of the agent are not relevant to this case. The question is not one of the duration, but of the extent of the agent’s authority. Powers of an agent are undoubtedly prima facie coextensive with the business intrusted to his care. In the case under consideration, the business of the agent was to sell goods. If he had greater or different authority, that fact must be ascertained by the jury upon competent evidence. A large amount of evidence bearing upon that point was introduced and submitted to the jury with proper instructions by the court.

The defendants’ first point was in substance affirmed in the charge of the court. The second point assumes a question of fact particularly referred to the jury, and was in substance denied in the charge. The third point was in effect denied in the charge, unless the jury should find that Herz had authority to make the arrangement to take back the goods. The fourth point assumes a material question of fact which was referred to the jury. As we have already seen, the court would have erred in affirming the fifth point which asked for binding instructions for the defendant.

The assignments are overruled and the judgment affirmed.