Sartwell v. Frost

Morton, J. By the agreement of July 21, 1874, James E. Abbott and Moses K. Abbott were constituted the agents of William Frost and Thomas P. Frost for the purpose of carrying on the shop in Pleasant Street. It provides that the Abbotts “ are to do business at 110 Pleasant Street, Boston, as agents for Wm. Frost and T. P. Frost of Boston. They are authorized to sell the goods now in store and buy other goods in order to keep the stock good with the money received, but not to buy on credit without an order in writing from Wm. Frost or T. P. Frost.” At the time the agreement was executed, the Frosts were the owners of the goods in said store. The Abbotts could not sell them unless they received authority from the Frosts to do so. The clear purpose of the parties was, that the Abbotts should carry on the business, should sell the old stock and purchase new from time to time, to replace that sold, and that the whole stock, both old and new, should be the property of the Frosts, so as to secure them for the money they had paid for the stock and incidental expenses. To hold, as contended by the defendants, that the transaction was a conditional sale of the stock to the Abbotts, would defeat this purpose, as the Frosts would have no title to the new goods purchased by the Abbotts, and thus their security would be constantly diminishing as the old stock was sold. The language of the agreement, which we have above cited, is appropriate to create an agency, and its other provisions are consistent with this construction. [188] Considering this as a contract of agency, it is clear that the general scope of the agency was the carrying on of the business in the store previously occupied by the Abbotts. The goods purchased by them from time to time, and put into the store as part of the stock, became the property of the Frosts, whether bought for cash or on credit. The agreement expressly provides that “ if at any time the business is not carried on to the satisfaction of Wm'. Frost and T. P. Frost, the store and fixtures, together with all goods in the store and the books and accounts, shall be turned over with the keys of the store to the said Frosts.” The argument of the defendants that the Abbotts could, under the agreement, purchase, upon their own credit, goods to be used in the business, which would be their property, is inconsistent with this provision and with the whole scope of the transaction. The parties acted upon the construction we have adopted, for, in fact, soon after the plaintiff’s debt was contracted, the Frosts took possession of all the goods in the store, including such of those sold by the plaintiff as remained in the stock. The plaintiff sold the goods in question to the Abbotts in ignorance of their relation to the Frosts. It is a w;ell settled rule that in such a case, the seller may resort to the principal when discovered by him. Raymond v. Crown Eagle Mills, 2 Met. 319. But the defendants contend that the rule does not apply to this case, because the. contract of agency contained the stipulation that the agents were not to buy on credit, and therefore they were not acting within their authority when they bought the goods of the plaintiff. It is a sufficient answer to this claim, that, upon the evidence at the trial, the court may have found that the defendants ratified the .acts of their agents, so far as they exceeded their authority. It appeared that all the goods bought went into the stock of the store to the use and benefit of the defendants, and that they took possession of a part of them and sold them as their own. They cannot thus avail themselves of the contract of their agent so far as it is for their benefit, and reject the rest; but by retaining and claiming the goods, in whole or in part, as their property, they must be held to have ratified the acts of their [189] agents, in excess of the instructions given them. Draper v. Charter Oak Ins. Co. 2 Allen, 569. The rulings in the court below were, therefore, correct. Exceptions overruled.