53 Ga. App. 609 | Ga. Ct. App. | 1936
Tampa Chair and Table Company, hereinafter called the chair company, sued W. & J. Sloane Selling Agents Inc., hereinafter called the Sloane Company, alleging damages by reason of a breach of contract. It was alleged that on May 30, 1934, the plaintiff gave to the defendant an order for floor covering (copy being attached to the petition), for which it was to pay $5077.01, and the defendant required the plaintiff to place with it, when accepting the order, a certified check for $3000, which was to be used as part of the purchase-price, which the plaintiff did; that thereafter the defendant returned to the plaintiff the check and refused to carry out the sale agreement, and breached the same; that if the defendant had shipped the floor coverings according to agreement, it would have reached the plaintiff at Tampa, Florida, within fifteen to twenty days; that in the meantime the market price of the floor coverings referred to in the order had increased in the sum of $384.81, for which amount the plaintiff prayed judgment.
The defendant answered, denying all the allegations of the petition, except paragraph 1, which alleged facts giving the court jurisdiction. Afterwards the answer was so amended as to allege that the order for goods on which the suit was based was never accepted by the defendant in writing by a person duly authorized to bind the defendant; and being for the sale of goods, etc., to the amount of over $50, it was within the statute of frauds, there having been no execution of the alleged contract and no performance on one side accepted by the other, “ defendant denying, moreover, that said writing constituted a contract, the same being a mere offer to buy, requiring the written acceptance of both William A. Sale, sales manager of the defendant company, and of its credit manager, before becoming a binding contract, and this acceptance was never so given orally or in writing;” that J. H.
The evidence is without conflict, and is as follows: J. H. Mc-Chesney was a traveling salesman for the defendant. His authority was limited to procuring orders for goods and forwarding them to the defendant’s office in New York for acceptance or rejection. On May 30, 1934, he obtained from the plaintiff an order for the purchase of goods to the amount of about $5000, on terms noted on the order. The defendant’s Atlanta office sent this order to the defendant on May 31, in a letter which advised that the plaintiff did not have sufficient credit rating, and that the order be held for further advice from McChesney and the plaintiff. On June 5, a letter signed by W. & J. Sloane, by the credit manager, O. N. Jolliffe, and addressed to Fulton Metal-Bed Manufacturing Copipany, advised that McChesney had forwarded to New York the order from the plaintiff company, stated the insufficient financial ability of the plaintiff, and asked for information as to its condition. It appeared that W. J. Atkinson owned stock and was president of both the metal-bed company and the plaintiff company. On June 7, the defendant wrote to McChesney, enclosing duplicate copies of the order from the plaintiff, and advising that from reports from the credit department it appeared that arrangements were not satisfactory. On June 7, the metal-bed company wrote to the defendant proposing to guarantee the account of the plaintiff company, and enclosing a guaranty contract. On June 13, the defendant, by C. N. Jolliffe, wrote to the metal-bed company, enclosing the guaranty contract, and advising that the guarantee was not sufficient, that the plaintiff’s order could not be
W. A. Sale testified for the defendant that he was sales manager of the linoleum and felt-base department; that the defendant’s business was departmentized, there being a sales division handling wool goods, a second sales division handling linoleum and felt base, and a credit department handling credits for the entire proposition; that E. B. Hayes assisted by C. N. Jolliffe was in charge of the credit department; that McChesney was a sales representative of the linoleum and felt-base department, but had no authority to accept orders and approve them; that the “practice when an order is received and approved is first to send it to our credit department for approval or rejection; if approved, it is then submitted to me to be passed upon, and if approved is ini
The telegram of June 15, in which Jolliffe stated, “Regarding telegram Fulton Bed will accept certified check $3000 and release car $3500 the balance to be paid upon receipt stop telegraph when check in your possession and we will release,” was a new sales proposition which modified the terms of the original order. Therefore, measured by the uncontradicted testimony of Mr. Sale, Jolliffe overstepped the bounds of his authority, unless the telegram be construed as approving only the credit feature of the transaction. By the evidence it was not shown that Jolliffe had the authority of his principal to make a binding contract of sale. He was not an officer of the defendant company, but only an employee with limited authority. The plaintiff who seeks to recover against the defendant by reason of the relation of principal and agent between two persons has the' burden of proving the fact of the agency. Agency cannot be proved by the declarations of the agent or by his assumption to do an act on behalf of another. No ratification was shown in this ease. The defendant promptly repudiated Jolliffe’s telegram by refusing to carry on, and by returning the certified check to the metal-bed company. It does not appear that this check was ever sent to the New York office, but certainly the defendant did not use it. Under the facts Jolliffe was a special agent only, and notice of the capacity in which he was acting was conveyed to the plaintiff in the letter of June 5, in which Jolliffe designated himself as “credit manager.” The president of the plaintiff company was also president of the Fulton Metal-Bed Company, and this letter of June 5 was the turning point in their negotiations after which the metal-bed cqm
Judgment reversed.