Upton v. Suffolk County Mills

Metcalf, J. The court have not found it necessary to form an opinion upon a question which was ably argued, namely, whether the contract declared on legally purports to be a contract between the plaintiff and the defendants. Assuming that it does, yet we are all of opinion that the defendants are not bound by it, because Allcott had no authority to bind them by such a contract. It appears from his testimony that he was their general selling agent, and had no special instructions in regard to making sales ; that no authority (by which he doubtless means express authority) was ever given to him by the defendants to make such a warranty as that on . which this action is brought; that no extra price was paid for the flour by reason of the warranty ; that though the sale was entered on the defendants’ books, yet that the warranty was not entered there; and that the defendants had no notice of the warranty until they were called upon by the plaintiff to answer for a breach of it. . The single question which we have examined is, what is [589] the extent of the implied authority of a general selling agent ? The answer is, it is the same as that of other general agents. And it is an elementary principle that an agent, employed generally to do any act, is authorized to do it only in the usual way of business. Smith’s Merc. Law (Amer. ed. 1847), 105, (5th ed.) 129; Woolrych on Com. & Merc. Law, 319; Jones v. Warner, 11 Conn. 48. A general agent is not, by virtue of his commission, permitted to depart from the usual manner of effecting what he is employed to effect. 3 Chit. Law of Com. & Man. 199. When one authorizes another to sell goods, he is presumed to authorize him to sell in the usual manner, and only in the usual manner, in which goods or things of that sort are sold. Story on Agency, § 60. See also Shaw v. Stone, 1 Cush. 228. The usage of the business in which a general agent is employed furnishes the rule by which his authority is measured. Hence, a general selling agent has authority to sell on credit, and to warrant the soundness of the article sold, when such is the usage. Goodenow v. Tyler, 7 Mass. 36; Alexander v. Gibson, 2 Campb. 555; Nelson v. Cowing, 6 Hill, 336; 2 Kent Com. (6th ed.) 622; Russell on Factors, 58; Smith on Master & Servant, 128,129. But as stocks and goods sent to auction are not usually sold on credit, a stock broker or auctioneer has no authority so to sell them, unless he has the owner’s express direction or consent. Wiltshire v. Sims, 1 Campb. 258; 3 Chit. Law of Com. & Man. 205 ; 1 Bell Com. 388. And it was said by Mr. Justice Thompson, (9 Wheat. 647,) that auctioneers have only authority to sell, and not to warrant, unless specially instructed so to do. As there is no evidence nor suggestion of a usage to sell flour with the hazardous warranty that it shall keep sweet during a sea voyage, in which it must twice cross the equator, we deem it quite clear that nothing short of an express authority, conferred on Allcott by the defendants, would empower him to bind them by such a warranty. See Cox v. Midland Counties Railway Company, 3 Welsb. Hurlst. & Gord. 278. Plaintiff nonsuit