Wallis Tobacco Co. v. Jackson

HEAD, J.- -The evidence in this case wholly fails to show that the goods, for the price of which this suit is brought, were reasonably necessary for the uses and purposes of the hotel which it is claimed McCants was conducting as agent for the defendant, or that they were such goods as were customarily used in the business of a hotel, or, indeed, that they were used at all in the business of the particular hotel. Eor aught the evidence discloses, they may have consisted of a stock of general merchandise, or agricultural implements, or some other commodities, having no use or place, either by custom or necessity, in the business of a hotel. If McCants was conducting the hotel as agent for the defendant, as contended, and as such was authorized to purchase supplies on credit, his agency extended no farther than the right to purchase such supplies as were reasonably adapted to, or customarily used in, a business of that kind; audit is the duty of the party selling, under such circumstances, to know that the goods sold are of such character as the nature of the business authorized the agent to purchase; and in a suit against the principal for the price the burden is on him, the seller, to prove the fact. See 1 Am. & Eng. Encyc. of Law, pp. 363-4, and notes. This principle is invoked by the defendant’s counsel, and, as we read this record, we can see no escape from its proper application to this case. It is unnecessary to consider the other questions. The judgment of the City Court is affirmed.