4 Mo. App. 145 | Mo. Ct. App. | 1877
delivered the opinion of tbe court.
This is an action under the statute, to recover possession of specific personal property. The property claimed was a sewing-machine, valued at $85. There was a verdict and judgment for defendant; and plaintiff appeals.
There was no conflict of testimony on the trial, and the evidence was as follows : Bussler, book-keeper of McKown,. general agent of plaintiff at St. Charles^ swore that the machine sued for was delivered by McKown to one White, a canvasser for McKown, to sell at the regular retail pricer $85 ; that White had authority to sell only at the regular retail price published in the circulars of plaintiff, with plates and prices attached; and that no sale made by White, under the regular price, was ever ratified. This particular machine was reported by White as sold to one Matthews, of Wright City, and he returned what he falsely represented as Matthews’s note in payment for it. Brown, book-keeper of the firm of Brown, Hudson & Co., of which defendant was a member, testified that White represented himself as in the employ of McKown, and placed the machine with defendant’s firm as security for goods to be purchased; that White then bought of the firm to the amount of $10.90, which he owed, and then sold the machine to Hudson,, the defendant, for $45, White’s account due the firm being taken in trade, and Hudson charged with $45, which included the debt due by White to the firm; that the machine was worth $85; that witness had heard White offer to sell the same kind of machine at $50, but he would have to make up the difference to the company. Mrs. Wilsey, the sewing-machine operator at the office of the Singer Manufacturing Company in St. Charles, testified that she went to defendant’s house to instruct his wife in the use of the machine; that she told defendant, then, the price of the machine ; that he replied that he was going to get it for less ; and she then told him that no agent was allowed to sell below the established rates. The defendant swore that he-
The court below instructed the jury that “ the validity of the sale would not be impaired by the fact that the price paid was below the usual price, and in this respect a violation of the agent’s authority, unless it had been proved that the defendant knew at the time that the agent was exceeding the authority of his principal as to the price of the machine, that the agent was, in the sale of the machine, undertaking to defraud his principal, and that defendant had knowledge at the time of the facts.”
There was enough here to put the purchaser on his guard. If he did not know, it was because he shut his eyes. It is enough that the purchase was utterly inconsistent with the most ordinary good faith. Positive knowledge, in such a case, is not necessary. Where one might know, and,