Fontaine v. Eagle & Phenix Manufacturing Co.

Trippe, Judge. The main question in this case was one of fact — to whom ■was credit for the goods given, or rather was credit given by the seller to Barden, exclusively, so as to make it an election that would disable him from afterwards demanding -payment of Fontaine? This point arises under the second request made by counsel for the defendant below. That request was, “ If plaintiff knew the principal, (Fontaine,) at the time, and yet elected to give credit to his agent, (Barden,) it must be taken to have abandoned its right to charge defendant.” Section 2198 of the Code is, “If the credit is given to the agent by the choice of the seller, he cannot afterwards demand payment of the principal.” At first glance it might appear that under this section it was error for the court to refuse the charge. . But what were the facts: The goods were bought by Barden for Fontaine, the defendant. They were shipped by the factory to the de [34] fendant. He received them and used them. They were entered in the original book of entries to Fontaine, though transferred to the ledger.to Barden. The officer of the factory who sold the goods testified that he gave the credit* to Fontaine, and looked to him for payment, and that at one time defendant promised to pay the bill. -That the bill was presented to Barden several times, as he was to collect it for the factory. There was counter-testimony tending to show that credit was given to Barden. In Wyley and others vs. Collins & Company, 9 Georgia, 224, it was held that in order to constitute an election to credit the agent so as to discharge the principal, it must appear that exclusive credit was given to the agent, and that the bare circumstance of having charged the goods to the agent on the books does not constitute such an election, nor does the taking of the note of the agent in liquidation of the account. And it is stated as a general result of the authorities, that in the absence of proof that the seller intended to exonerate the principal, the presumption would be that he does not. It is true that an election deliberately made, with knowledge of the facts, is conclusive. But, as has been stated, it must appear that the seller lias chosen to make the agent his debtor, dealing with him and him alone, and that exclusive credit was given to him: 9 B. & C., 78; 4 Taunt., 574; 15 East, 62. There may be many cases in which both the agent and the principal may be bound, and several of them are referred to in Wyley and others vs. Collins & Company, supra. In this case, the mere fact that the account, which was entered in the original book of entries to the principal, was afterwards transferred to the agehL’s account, in the ledger, and presented to him, does not, of itself, or under the testimony in the case, make it such a case of exclusive credit'given to Barden as to bar the creditor of all right to go on Fontaine. At least, under the testiniouy, the written request should have contained that point, to-wit: not whether any credit was given to Barden, but whether it was so given as to be exclusive of any right of the seller to demand payment afterward from the principal. [35] There was no evidence of any city taxes having been imposed on the goods sold, which were avoided or intended to be avoided, so as to make the contract void on that account. No ordinance of the city of Columbus was introduced, and there was no proof of the violation of any law^ state or municipal. As to whether the contract would have been void or illegal had there been such testimony, we do not decide. Judgment affirmed.