Zilberman v. Friedman

Seabury, J. The plaintiff was a wholesale dealer in beds, doing business as the Bell Metal Furniture Company, and sold and delivered goods to the defendant at an agreed price. The defendant pleaded payment and this defense presented the only issue upon the trial. The defendant ordered the goods from one Bromberg, who was a salesman of the plaintiff. The goods were sold upon credit. When the goods were delivered to the defendant, a bill or statement of account was also delivered, at the head of which was printed the notice, “ Pay none but authorized collectors ” Three weeks after the delivery of the goods, Bromberg called upon the' defendant and demanded payment. The defendant paid Bromberg the amount of the bill, and Bromberg receipted the bill as follows: “ Received payment, Bell Metal Furniture Co., J. J. B.” Bromberg failed to pay the money he received from the defendant to his principal. Upon these circumstances being proved, the justice before whom the action was tried awarded judgment for the plaintiff. Bromberg had no real or apparent authority to collect the purchase price of the goods from the defendant, and payment to him did not bind the principal or discharge the defendant. Mr. Mechem, in his work on Agency, says: “ Whether an agent authorized to sell personal property has implied authority to receive payment, is a question upon which there has been much difference of opinion. It will be obvious that its solution must depend largely upon the nature of the particular transaction and the usages if any in relation thereto.” § 336. In Clark & Skyles, on the Law of Agency (vol. 1, § 239), the rule when the goods are sold on credit is stated as follows: “An agent, employed to make sales and selling on credit, is not authorized to subsequently collect the price in the name of the principal; and payment to him. will not discharge the purchaser mil ess he can show some authority in the agent other than [258] that necessarily implied in a mere power to make sales.” In Hirshfield v. Waldron, 54 Mich. 649, it was held that presentation of a bill by a merchant’s employee does not warrant the debtor in paying the amount of the bill to him, even when the agent states that he is authorized to receive it and the bill is in the merchant’s handwriting and on one of his billheads. In view of the circumstances of this case and of the notice upon the bill that none but authorized collectors were to be paid, the payment to the agent was insufficient to protect the purchaser. Lamb v. Hirschberg, 1 App. Div. 519. The "proof showed that Bromberg was not authorized to make collections. Hid authority was merely to solicit orders or sell the goods of his principal. The goods were never in his possession and he was clothed with no indicia of authority. Payment made to him under these circumstances was at the peril of the debtor and, upon his failure to establish the real or apparent authority of the agent to make collections, the payment to him afforded the debtor no protection. Hahnenfeld v. Wolff, 15 Misc. Rep. 133. Gildersleeve and Brady, JJ., concur. Judgment affirmed, with costs.