1 Mich. 373 | Mich. | 1850
By the court,
The first inquiry which naturally arises in this case, is, what was the nature and extent of Raitte’s agency, in purchasing the furs ip question, as between Brewster, his principal, and the plaintiff? If we are able to arrive at a satisfactory conclusion upon this question, there will be no serious difficulty in determining the rights of the parties involved in this suit.
The only evidence of Raitte’s power to act as the agent of Brewster, is found in the letters of Brewster, dated the 24th of April, 1844, one of which is addressed to the plaintiff, and the other to Raitte.
In his letter to the plaintiff, the defendant says: “ On my return to Fort Wayne yesterday from the south, I found your letter of the 9th inst., advising me that you had from five thousand to eight thousand fur skins, mostly coon, which you wished to sell, and which I should be glad to purchase. As my business will detain me one or two weeks yet in this country, I have this day written to Mr. Thos. G. Raitte, of Norwalk, who is my agent, to make you a visit for the purpose of purchasing your furs, and I hope and trust that you and Mr. R. will be able to make a bargain for your lot of furs.”
In his letter to Raitte of the same date, the defendant says: “ Annexed I hand you a copy of a letter which I received yesterday at ■ Wayne, from Mr. Sorrel of Lithopolis, and I wish you to see Mr. S. without delay, and see if you can purchase his lot of furs; but if you
There does not appear to he any evidence that the contents of this last letter wore made known to the plaintiff at or before the time of the sale, nor is it at all material whether such was the fact or not, there being nothing in it which does not harmonize perfectly with that written to the plaintiff.
The defendant, then, must he held bound by the acts of Raitte, as his agent, to the extent' to which he1 held him out, in his letter to the plaintiff, as being authorized-to act for him. In that letter he informs the plaintiff that Raitte is his agent, and that he has written to him to make the plaintiff a visit for the purpose of purchasing the lot of furs in question, and hopes they will be able to make a bargain for them. Here is no restriction, or limitation, or condition whatever imposed upon1 the power of the agent in- making the purchase1 indicated by the principal; but the- fact of the agency is announced in the most general terms, accompanied by an invitation on the part of the principal to 'the plaintiff to bargain with the agent as such.
This case is, then, very clearly distinguishable from that class of special agencies, in which the agency is not held out by the principal, by any acts, or declarations, or implications, to he general in regard to the particular act or business. In the latter case it must from necessity be construed according to its real nature and extent; and the other party must act at his own peril, and is bound to inquire into the nature and extent of the authority actually conferred. Story on Agency, sec. 133.
In a note to this section, Judge Story very justly remarks, that “the whole difficulty, ih considering this doctrine, arises from confounding two things with each other, which are essentially distinct, namely, the extent of the authority given to au agent, whether it be limited or unlimited, with the nature of the agency in which he is employed, whether it he general or special. A person may he a general agent, that is, he may be employed in the general business of his principal, and yet
In sec. 133, before referred to, Judge Story illustrates the doctrine thus: “ If a merchant should ajopoint a special agent pro hac vice, to buy or sell a cargo of cotton for him in his discretion, and he should, by an ojien letter, state that he had so authorized the agent to buy or sell on his account, and that he would ratify and confirm his acts in the premises ; a person who should deal with the agent upon the faith of that letter, and buy or sell the cargo of cotton accordingly, would be entitled to hold the principal bound by the acts- of the agent, although the latter might have violated his secret instructions as to the price of the cotton purchased or sold.” See, also, note 2 to sec. 127, id.
Let us apjoly this doctrine, thus exjolained and illustrated, to the case before us. The defendant advertises the jfiaintiff that Raitte is his agent, and that as such he has requested him to visit the jilaintiff, to purchase his lot of furs. He makes no allusion whatever to any restriction of his agent’s power. He thus recommends Raitte to the plaintiff’s confidence, as one with whom he may safely bargain for the sale of his furs. What,-then, had any arrangement between the defendant and Raitte, of which the jolaintiff had no knowledge, to do with the rights of the parties? The plaintiff has a right to hold the defendant bound by the acts of his agent, within the scope of that agent’s authority, notwithstanding such agent may have acted in bad faith towards his principal, or violated any instructions, or private understanding or agreement between them. Hence, the testimony which was offered on the part of the defendant-, of an agreement between himself and Raitte, in regard to the advance of moneys and the jourchase of furs, was irrelevant, and the objection made to its introduction was well grounded. Putting this testimony entirely out of the case, the facts appear thus: Raitte, as the agent of the defendant, acting under a general authority for that purpose, bargained with the jolaintiff for his entire lot of furs. Upon ascertaining' the quantity, it appeared that they amounted to more than the parties had antieijoated, and Raitte stated to the plaintiff that
The special counts in the declaration, it is said in the argument, have been nol prossed, and the plaintiff seeks to recover only upon the indebitatus assumpsit count for goods sold and delivered. Upon this state of facts, is the plaintiff entitled to recover ?
The objection based upon the relation existing between Brewster and Raitte, has already been disposed of. But it is further urged, that by the custom or usage of the fur trade, an agent employed in that business, could not incur a debt against his principal. In order to show such custom in this particular trade, two witnesses were examined on the part of the defendant, Mr. Abbott and Mr. Dudgeon, but he seems to have relied principally upon the testimony of Abbott, who had been engaged in the trade for many years. His testimony upon this point, as reported, is as follows:. “ He has known instances of agents- buying furs, under peculiar circumltances, to a greater amount than they had funds.. The general mode is to buj’ for cash, for furs are always a cash article. Never heard of furs sold for a credit. If I send a man to a place to buy furs, and he unexpectedly finds more than he or I expected, and he has not money enough, he might draw for a balance. "We generally give instructions. Pie would not he authorized to give a note. There is nothing in the course of trade which would prohibit his getting a credit for a small balance, but it is a question of law whether he would he authorized to do so.”
The agent in this case was authorized to purchase the furs. líe appears to have been provided with a large sum, iu money and drafts, but not sufficient to pay in full. As to the mode of completing the purchase under these circumstances, he had no instructions.. What modo ■ might he adoj>t, consistently with the usage of the trade ? He could not, according to the testimony of Mr. Abbott, give a note in the name of his principal, and, if I understand the witness, he could not get a credit for the balance. By credit, however, he evidently does not mean an indebtedness due in presentí, because, while ho says he never heard of furs sold for a credit, he also says he has known of instances of agents buying furs, under peculiar circumstances, to a greater amount than
The true question undoubtedly is, what is the custom of the trade under the particular circumstances of the present case? and that question does not appear to be distinctly answered by the testimony.
The faet that Mr. Brewster treated the furs purchased of the plaintiff as having been bought under the general arrangement between him and Raitte, and that he paid Raitte for them accordingly, can make no difference, so far as the plaintiff’s rights are concerned.
As between these parties, the defendant, by his agent, purchased the furs of the plaintiff, and received and disposed of them for his own benefit, without having fully ¡raid the purchase price agreed upon. la he liable for such balance under the circumstances of this case ? I think he is, and that a new trial ought not to be granted. The general mode of conducting the fur business, to which Judge Abbott refers, would seem to be, to send out agents whenever furs were to bo purchased, with means to pay for them, and with particular instructions. In such cases, the person dealing wiih the agent would have no knowledge of the principal, or of the agency, or the powers of the agent, except such as the agent himself might disclose. The usage of a trade conducted in that manner, would, it seems to me, for very obvious reasons, bo very different from that which would govern a transaction like that between these parties, where the negotiation is commenced by the parties in person, and one of them substitutes another to act in his stead, and solicits the confidence of the other party in such substitute, for the purpose of consummating a bargain.
Certified accordingly.