Cable Piano Co. v. Strickland

Allen, J. The agent from whom the defendant bought the piano was not a general agent of the plaintiff, and the burden-was, therefore, on the defendant to prove that he had authority to waive the provisions of the written contract. It was so held in Machine Co. v. Hill, 136 N. C., 128, and in Medicine Co. v. Mizzell, 148 N. C., 387. In the first of these cases 'the plaintiff was suing upon a contract for the sale of sewing machines, which contained the provision: “It is understood that no claim or any understanding or agreement of any nature whatsoever between this company and its dealers will be recognized, except such as is embraced in written orders or is in writing and accepted by said company at its office,” and the defense was that the agent who made the sale made a verbal agreement with them’ to have the sole agency for sale of the plaintiff’s machines in Franklin County, and that *253 they incurred considerable expense, employing an experienced salesman to handle the machines and purchased a horse and wagon for him, but that, in violation of such contract, the plaintiff shipped machines to said county to rivals in business of the defendants, who undersold the defendants, causing them to sell the machines bought of the plaintiff at a loss, besides causing the loss of salary paid their salesman and the cost of equipping themselves for the handling of the machines under their contract for an exclusive agency, and the Court said: “It is true, on one hand, that the plaintiff had the right to restrict the powers of its agents by the notice quoted above, and printed on the orders signed by the defendants, and, on the other, that this restriction could be waived. But the burden to prove that such waiver was within the scope of the agent’s authority was upon the defendants. It could not be proved by the agent’s own declaration. It must be proved aliunde. Taylor v. Hunt, 118 N. C., 173, and cases there cited; Summerrow v. Baruch, 128 N. C., 204.” In the second case the action was brought to recover the price o’f goods sold and delivered to the defendant under a written contract containing the following stipulation: “This order is not subject to countermand, and we will receive said goods promptly on arrival at the station named above. There is no agreement, verbal or otherwise, affecting the terms of this order, other than is specified herein.” The court, over the plaintiff’s objection, permitted the defendant to testify that at the time he signed the written contract or order the agent who sold the goods said he would ship them, and the defendant could keep them for ninety days, and if at the expiration of that time they were unsold, he could ship them back to the plaintiff. This Court held the evidence incompetent, and said: “If the agent had the authority to make the oral agreement, the burden was upon the defendant to show it, even if evidence of such agreement was otherwise competent. Machine Co. v. Hill, 136 N. C., 128.” The last case of Medicine Co. v. Mizzell has been approved in Woodson v. Beck, 151 N. C., 146; Briggs v. Insurance Co., 155 N. C., 78; Bowser v. Tarry, 156 N. C., 38, and Simpson v. Green, 160 N. C., 301. *254 It follows, therefore, as there was no evidence of authority upon the part of the agent to waive the provisions of the written contract and to make the oral agreement, that his Honor was in error in refusing the instruction prayed for, and in assuming in his charge that there was evidence of authority by the agent. A new trial is ordered.. New trial.