Simmons Hardware Co. v. Todd

79 Miss. 163 | Miss. | 1901

Terrad, J.,

delivered the opinion of the court.

We are of the opinion that the court erred in giving a peremptory instruction for tbe defendant in this case. It is perfectly apparent from the record that Dr. Todd purchased the goods, the price of which is here sued for, from Alexander, the traveling salesman of the Simmons Hardware Company, of St. Louis, Missouri, and that the purchase was made by Ben Todd, at the suggestion of Dr. Todd, and the goods were charged to Carson & Co., at the instance of Ben Todd, the agent of Dr. Todd in the purchase. There was not the least show of right in charging the goods to Carson & Co., and such act was a nullity. Where a vendor sells goods to an agent for another person, whose name is not disclosed at the time of the purchase, the vendor, although credit is extended to the agent, may, upon finding out the principal, elect to pursue him for the purchase price. Ben Todd was the agent of Dr. Todd in the purchase of these goods, and, if they had been charged to Ben Todd, the vendor, on finding out that Dr. Todd was the principal in the purchase, could have charged the goods against Dr. Todd; and his right to do so cannot be less where they were charged by Ben Todd’s direction to Carson & Co., who by no means could be made liable for them. If the facts of the case do not demand a peremptory instruction for the plaintiff, they at least require the submission of them to a jury. The whole arrangement between the parties was but a device to enable Dr. Todd to get the goods without paying the retailer’s profits. It is altogether unlike the case of Hendricks v. Robinson, 56 Miss., 694, 31 Am. Rep., 382. In a case similar to this, Lord Tenterden, C. J., said: “ I take it to be a general rule that, if a person sells goods, supposing at the time of the contract he is dealing with the principal, but afterwards discovers that the person with whom he had been dealing is not the principal in the transaction, but agent for a third person, though he may in the meantime have debited the agent with it, he may afterwards recover the amount from the real principal." Thompson v. Davenport, 9 Barn & C., 78 (17 E. C. L., 45). In Patterson v. Gandasequi, Lord Ellen-borough, C. J., said: “The law has been settled by a variety of cases that an unknown principal, when discovered, is liable on his contracts which his agent makes for him; but that must be taken with some qualification, and a party may preclude himself from recovery over against the principal by knowingly making the agent his debtor.” And Bayley, J., said: “ I have generally understood that the seller may look to the principal when he discovers him, unless he has abandoned his right to resort to him.” 15 East, 62. 2 Kent Com. (13th ed.), see. 631, note “ Y,” says: “The general rule that an undisclosed principal may sue or be sued upon his disclosure is sustained by Curtis v. Williamson, L. R. 10 Q. B. 57, and other cases there cited. ’ ’ And this right to sue the principal continues until the creditor, with full knowledge of the facts, elects to hold the agent bound for the price. If the principal is misled by the creditor to believe that such creditor intends to look alone to the agent for his claim, and thereby induces him to settle with the agent, the right of the creditor to charge the principal is gone. But upon this record there is no room to claim that Dr. Todd had been misled by the Simmons Hardware Company in any particular. We think, upon this record, that right and justice is with the plaintiff, and it should have had verdict and judgment.

Reversed and remanded.