Bernstein v. Schwartz

Mitchell, J. The Alaska Junk Company, through its agent, purchased from the Astoria Junk Company one hundred and fifty tons of mixed scrap iron, at [272] Astoria, Oregon, apon a personal examination of it by tbe agent. Later tbe contract was reduced to writing and signed by both parties in Seattle. After partial delivery and part payment, the purchaser refused to further carry out the contract, and this suit was brought to recover damages for its breach. The Alaska Junk Company defended, relying on an alleged modification of the contract to the prejudice of plaintiff’s rights. Plaintiff denied the contract had been modified. There was a jury trial, resulting in a judgment in favor of plaintiff, from which judgment the defendant has appealed. There are seven assignments of error. Assignments numbered 1 and 2 refer to the signing and entry of judgment and denying a motion for a new trial, and are controlled by the disposition made of the other assignments. Assignments numbered 3, 4 and 5 relate to the alleged modified contract, claimed by appellant to have been signed for respondent by S. E. Mesher, unsuccessfully offered in evidence, and the question of the agency of Mesher in connection therewith. Mesher was not a witness at the trial. There is no proof that he ever acted with any authority in any dealing between the parties to this suit up to and including the making of the contract. The so-called modified contract has the purported signature of respondent by Mesher. Upon identification of it by appellant, it was offered in evidence and properly refused until the agency of Mesher was shown. Attempt was made to show such agency in a general way, and also by a peculiar circumstance. It is clear the original contract, which was made in duplicate, was not signed at all by respondent on the duplicate kept by appellant, and later when Mesher, as collecting agent for respondent, received a payment on the contract, he signed a receipt therefor, written [273] on the duplicate held by appellant in such way and place that at the trial appellant attempted, with poor grace and manifest hedging, to say that the signature of S. E. Mesher was to the contract as such, although the same witness otherwise testified he did not remember if Mesher was present on the day the contract was made and signed; and a number of other witnesses— indeed, all others on both sides who testified on the subject at all—said either that Mesher was in Oregon on that day or that they did not remember his being present at the time the contract was signed. At the conclusion of all the evidence on this particular point—■ in fact, at the conclusion of all the evidence in the case, the trial judge, referring to such signature of Mesher under the receipt written on the duplicate contract held by appellant, remarked: “It is not signed as a contract. He put his signature not to the contract. He put his signature to the receipt at the bottom, as a receipt for four hundred dollars,” to which ruling counsel for appellant not only did not take any exception, but said: “That is a matter of course;” but still claimed there was a showing generally of the agency of Mesher to make a modified contract. Thus having failed to show that Mesher, as agent, had signed the contract, it is contended the court erroneously excluded evidence tending to show agency generally. In this respect, after appellant’s manager had testified that salesmen for different junk houses had authority to draw up and enter into contracts, appellant’s attorney—not its present attorneys, however—(in the absence of any proof that Mesher had ever acted as a salesman for respondent) commenced a question, “And if S. E. Mesher was a salesman for the Astoria Junk Company—” at which juncture an objection was made that it was immaterial, the question being what was done in this particular case, and that the witness had [274] already testified lie could not say if Mesher had authority to enter into a contract for his house. The objection was properly sustained. Further, in this regard, appellant attempted to show, by an officer of the Northwest Junk Company, that it had made contracts with this respondent through Mesher. The attempt and character of the agency were narrowed as indicated by an offer to show that Mesher had made contracts with the Northwest Junk Company, and that it was customarily understood in the trade that he was competent to make contracts with the Northwest Junk Company. It was unimportant in the present case to show a special agency to make contracts with another particular person. The sixth assignment of error refers to an instruction given the jury. It is claimed the court erroneously advised, as a matter of law, that Mesher had no authority to make any modified contract for the Astoria Junk Company. Upon the whole record, we think the instruction was clearly right. The attempt of appellant to show that Mesher had authority to make a contract for respondent had wholly failed, and besides, presumptively, an agent employed to make contracts has no power to rescind them. His duty is to acquire interests, not to give them away; nor has he any implied power to waive or give up rights or interests of his principal. 31 Cyc. 1387. In this case, Mesher was only a collection agent of respondent, and called upon appellant for that purpose. In the course of delivery of the goods from Astoria, Oregon, to Seattle, a presidential proclamation had ordered an embargo upon the export of scrap iron which greatly reduced its market value. Appellant refused to pay for a car of the iron shipped, and Mesher was sent to make collection. On reaching Seattle, appellant insisted on a cancellation or modification'of the contract, claiming the goods were unsatis [275] factory. Mesher wired for advice, and received a reply from respondent not to cancel the contract, but to tell the Alaska Jnnk Company they wonld be held to their contract and that remaining cars would be shipped within the specified time. At the trial, this dispatch of respondent’s was admitted in evidence with the consent of appellant’s counsel. It was after the receipt of the telegram by Mesher that the so-called modified contract was made. Obviously, the trial court was right, under all the circumstances and evidence, in giving the instructions now complained of. The seventh assignment of error refers to the refusal of the court to give a requested instruction permitting the jury to determine if there was a modification of the contract that was binding upon respondent. What we have just said concerning the sixth assignment of error disposes of this adversely to appellant. , As to the quality of the goods, part of which was delivered and others tendered, although there was some testimony on behalf of appellant that they were not up to grade, respondent’s proof was that they were the particular goods examined by and sold to appellant. The matter of the quality or identity of the goods and of the account between the parties were questions of fact for the jury, whose verdict is supported by ample proof. Judgment affirmed. Holcomb, C. J., Mackintosh, Main, and Tolman, JJ., concur.