92 Kan. 368 | Kan. | 1914
The opinion of the court was delivered by
The Randolph Lumber Company, a corporation engaged in the retail lumber business at Randolph, brought action against the Western Silo Company, a corporation manufacturing and selling wooden silos. A demurrer was sustained to the plaintiff’s evidence, and it appeals.
The petition alleged that the defendant had employed the plaintiff as its agent in making sales at a commission of 20 and 5 per cent; that six sales had been made, the commissions amounting to $391.20; that the plaintiff had incurred $146.90 in expenses for which it was entitled to reimbursement, and had been paid $200, leaving a balance due of $338.10.
The answer alleged that the defendant had never authorized the contract pleaded by the plaintiff; that a salesman of the defendant had undertaken to make such a contract with the plaintiff (except that the com
The evidence was to the effect that a salesman of the defendant, assuming to have authority for the purpose, made the contract with the plaintiff as alleged in the petition; that the sales were negotiated at prices fixed by the salesman referred to, and that they were reported to and filled by the defendant.
The question involved is whether there was any evidence of authority on the part of the salesman to make the contract relied on by the plaintiff, or of facts that would preclude the defendant from denying such authority. We think the case falls within the rule that the principal can not accept the fruits of a contract made in his behalf and at the same time reject any of its burdens on the ground that it was unauthorized. (Evans v. Insurance Co., 87 Kan. 641, 125 Pac. 86; Wagon Co. v. Wilson, 79 Kan. 633, 101 Pac. 4; Bank of Lakin v. National Bank, 57 Kan. 183, 45 Pac. 587.) The company could not ratify a sale made at less than the authorized price and charge the agent with the difference. (Halloway v. Milling Co., 77 Kan. 76, 93 Pac. 577.) It is true there was no direct evidence that the defendant at the ■ time- of filling the orders knew the price at which the sales were made or the commission its salesman had agreed to pay to the
The judgment is reversed and a new trial ordered.