55 Wis. 515 | Wis. | 1882
A short time before August 11, 1819, one W. L. Kilhourn called upon the defendant at Berlin,'Wisconsin, exhibited the cai’ds of the plaintiffs’ house in Chicago, and solicited and obtained from the defendant an order for 1,000 cigars of a certain brand upon, and sent the same to, the plaintiffs, and the plaintiffs on that day shipped the cigars and sent the bill thereof (of $30 at sixty days) to, and they were duly received by, the defendant. About thirty days* thereafter the said Kilhourn called upon the defendant and ashed him “if he would just as soon pay him for those cigars as not,”' and the defendant replied “ that he would as soon pay it then as any other time,” and paid the same, and said Kilhourn receipted the original bill produced by the defendant in the firm name of the plaintiffs by himself. Kil-
The only question here is, what was his apparent or ostensible authority in this one act? “IIis implied agency cannot be construed to extend beyond the obvious purposes for which it was appcvrently created.” “ The intention of the parties, deduced from the nature and circumstances of this particular case, constitutes- the true ground of exposition of the extent of his authority.” Story on Ag., § 87; Wright v. Hood, 49 Wis., 235. A principal is responsible for any act of his agent which justifies a party dealing with him in believing that he has given the agent his authority to do such act (1 Parsons on Con., 44; Kasson v. Noltner, 43 Wis., 647); or, as Pothier says, “ if the agent does not exceed the power with which he was ostensibly invested.” This agent did not appear or pretend to have any other authority from the plaintiffs than to solicit orders for goods, and send them to the plaintiffs. This is all he did in this case, and all
But it is said by the learned counsel of the respondent the agent Kilbourn sold the goods to the defendant, and in this power to sell is implied the further power to receive the consideration or payment therefor, and the learned judge of the circuit court in effect so charged the jury, as follows: “ Presumptively, Mr. Dunham had the right to pay this bill to the person from whom he purchased the goods ” (meaning Kilbourn, the agent); and again: “ The plaintiffs sending the goods to Dunham upon that sale or order, presumptively Kilbourn had the right to collect that debt.” If what Kil-bourn did could properly be called a sale of the goods, even then this instruction is questionable as an abstract statement of the law; for it does not always, as a general rule, follow that the power to collect the moneys upon them is included in the power of an agent to make contracts for his principal. Story on Ag., § 98; Higgins v. Moore, 34 N. Y., 417; Mynn v. Joliffe, 1 Moody & R., 326.
But the agent did not sell the goods, or even contract to sell them. When the defendant had completed his transaction with Kilbourn, there had been no binding contract made, or any sale, absolute or conditional. The defendant could have countermanded his order at any time before the goods were shipped, and the plaintiffs could have refused to accept the order. Neither party had become bound by anything then done. The order of the defendant was a mere proposal, to be accepted or not, as the plaintiffs might see fit, and he could have withdrawn it before its acceptance. The minds of the parties had not met, and there had been no mutual assent or aggregatiomentimn. Benj. on Sales, §§ 40,70;
It follows, therefore, that so far, the circuit court committed two flagrant errors: First, in ruling and instructing the jury that Kilbourn, as agent of the plaintiffs, made a sale of the goods to the defendant, and was authorized so to do; and, secondly, that if he did sell the goods, he had, therefore, authority to receive payment therefor. We omit to consider whether, admitting both of these propositions, he could have received payment before it was due according to the terms of the assumed sale, or whether the fact of his proposing payment so long before due did not cast suspicion upon his act, especially as he had not been intrusted with the bill of the goods even, and did not pretend that he had authority to
We have so far treated the case as if nothing .else appeared on the face of the bill of goods or figured in the transaction, for this is the most favorable treatment of the case for the defendant. We might omit entirely this other element in the case, if it were not passing over evidence of authoritjr in the agent to receive payment in this particular •case, by construction or presumption, and silently sanctioning a judicial practice which we cannot approve. On the face of the bill sent to the defendant, and directly under his address, there appears in large, legible print in red ink, as if stamped upon it, the words, “ Agents not authorized to collect.” Through these words, lengthwise, appears drawn a pen line in dark ink as an erasure. The positive testimony of one of the plaintiffs, at least, is that such erasure was not there when the bill was sent to the defendant. The testimony of the defendant and in his behalf was only that it was there when the bill was paid, and that neither the words nor erasure were observed when it was received. It might well be said that there was no contradiction of the testimony of the plaintiffs that the erasure was not made before the bill was sent to the defendant, and that such fact was at least prima facie established. Even on that hypothesis, the circuit court refused to instruct the jury, as requested by the counsel of the appellant, that these words were notice to the defendant whether he saw them or not. ¥e think this was clearly erroneous. If these words, so legible and prominent on the face of the bill, would not be notice, it would seem to be impossible to give a purchaser such a notice. By all authorities, he must be presumed to have observed these words, and to have had such notice, when they were so prominent on the face of a bill of goods in his possession, and in which he alone was interested as purchaser.
This was the condition of the case on this point, — the plaintiffs having proved that the words were there and un-erased when the bill was sent to the defendant, and this fact was not disproved by the defendant, and both parties having rested, and the plaintiff’s counsel having presented his case to the jury, the learned judge before whom the case was tried said: “ I have just discovered a thing myself, and in the interest of justice I want to examine a witness.” The court then called as a witness E. H. Sawyer, Esq., the court reporter, who in effect testified to a resemblance of the ink and pen in the line of erasure to that of another part of the bill, and gave by no means a certain opinion that they were the same, and on cross examination said that he could not say they were the same, but that there was a close resemblance. In his instruction to the jury the learned judge said, after instructing them to examine the paper: “ Take the evidence of the expert which has been given to you, who testifies that in his opinion, after being engaged in this business some fourteen years, it is that the pen and ink which made the erasure of the words c agents not authorized to collect,’ is the same that wrote the words on the bill ‘ shipped this day.’ ”
On inspection of the erasure and these words it is quite obvious that their resemblance, either in the color of the ink or in the pen mark, is not very close. The manner of an
By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial therein.