Simon & Son v. Johnson

McCLELLAN, J. The decided weight of authority, indeed well nigh all the adjudged cases, support the proposition that a travelling salesman of merchandise, making sales by sample on a credit or for cash to be paid on receipt of the goods or the invoice of them, has no implied authority to collect the money agreed to be paid from the purchaser. — 2 Am. &Eng.Encyc. of Law, p. 355 and notes; Kane & Co. v. Barstow, 42 Kan. 465, s. c. 16 Amer. St. Rep. 490, and note 494; McKindly v. Dunham, 55 Wis. 515, s. c. 42 Am. Rep. 740; Kohn v. Washer, 64 Tex. 131, s. c. 53 Am Rep. 745; Butler v. Dorman, 68 Mo. 298, s. c. 30 Am. Rep. 795; Law v. Stokes, 90 Am. Dec. 655; Korneman v. Monaghan, 24 Mich. 36; Clark v. Smith, 88 Ill. 298; Higgins v. Moore, 34 N. Y. 417; Greenleaf v. Egan, 30 Minn. 316; Seiple v. Erwin, 30 Pa. St. 513. The particular facts of the Maine case, relied on by [371] counsel for appellee, prevent it from being an authority against the proposition just stated. The opinion in that case, indeed, recognizes the soundness of the rule declared in Higgins v. Moore and McKindly v. Dunham, supra, and in effect bases the conclusion that payment was well made to the agent mainly, -if not entirely, on the facts that the “agent assumed to complete a contract of sale, specific in terms, stipulating that payment was to be made to himself /’ and that, ‘ ‘ after the goods had been delivered, he presented for payment a bill, made upon a genuine ‘bill-head’ of his principal.” Neither of these facts is in the present case or was involved in the cases cited. Without committing ourselves to the effect accorded them by the Maine court, it is readily conceivable that there is much reason for according them an important influence in shaping the conclusion reached. — Trainor v. Morison, 78 Me. 160, s. c. 57 Am. Rep. 790. The Vermont case, relied on by the appellee, involved the sale by one Allen, who was in fact a travelling salesman for plaintiff’s firm, but who represented himself to be a member of the partnership, and upon that representation made the contract of sale with the defendants. This contract embodied a stipulation that defendants should pay Allen for the goods, when he should come to their city on his next trip, in about three months; and the decision is based on this express stipulation for payment to Allen/ in connection with the consideration that defendants had a right, under all the circumstances, to rely upon Allen’s making a truthful report of the terms of the sale, and to suppose that the goods were sent pursuant to the contract as made; a view which finds nothing in the present case to rest upon. — Putnam v. French, 53 Vt. 402, s. c. 38 Am. Rep. 682. The only case to which we have been referred, or which our own investigation has disclosed, that really sustains the position taken for appellee is that of Collins & Co. v. Newton, 7 Baxt. (Tenn.) 269. No great degree of investigation or consideration is evinced by the opinion of the court, and in reaching the conclusion announced no account seems to have been taken of the distinction, uudoubtedly very important, between agents to make contracts of sale by sample to be filled through a delivery of the goods by the principal, time being given for payment, or payment to be made on delivery by the principal, and agents who., having [372] the property of the principal in their possession for that purpose, sell and presently deliver it to the purchaser. The question has not been decided in Alabama. We are content, however, to follow the very numerous cases which hold that such an agent has no implied power to collect from purchasers for goods sold and delivered in the manner shown in this record. The agent has not the goods,' and does not deliver them, prima facie his agency is discharged when he makes a contract of sale, and takes an order for delivery by the principal. The sole purpose of his itineracy is to induce parties, having need of the wares in which his principal deals, to buy them from the house he represents. In doing this he, in a sense, has taken the place of ordinary advertisement and orders through the mails to the wholesale dealer, which obtained in the course of such transactions before his day. Having done this in a given instance, at a particular place, and made report to his employer, he passes'on, and it is the merest accident if he is again at that place at the time the bill falls due, or if the purchaser at such time knows his whereabouts. To hold that an agency simply to make and report such contracts of sale, under these circumstances, involves an agency to collect the contract price when the account matures, a matter wholly beyond the exigencies of commerce which brought •these agencies into being, inconvenient of accomplishment and entirely unnecessary, in' such sort that it is to be assumed that the principal held the agent out as empowered to collect, would be too radical a departure from elementary principles of the law of agency to be tolerated. To the contrary, we hold that a travelling salesman, making contracts of sale by sample, goods to be delivered by the principal and the purchase money to be paid on delivery, or at any other time transpiring, or upon any other event happening in the future, is, upon these facts and without more, wholly unauthorized to receive payment, and, of consequence, that payment made to him will not discharge the debtor from his liability to the principal. It is insisted, however, in this case that the payment was authorized and justified by a custom prevailing generally in the town of Geneva, where the contract of sale was made, the goods delivered subsequently, and the price paid, also subsequently, to the agent, for payments [373] to be made in this way. The plaintiffs, whom this agent was representing, lived and carried on their business in New Orleans. Conceding that the usage itself was established by the evidence, it did not authorize or justify the payment to the agent, or in any manner change or affect the rights of the principals, unless it had also been proved that they had notice of it. — German American Ins. Co. v. Commercial Fire Ins. Co., 95 Ala. 469, 11 So. Rep. 117. This was not only not proved, but there was no evidence adduced which legitimately.tendedlo prove it. The only fact relied on as having such a tendency is, that some years previously the defendant had purchased a bill of goods from a firm in New Orleans, paid the bill at maturity to the travelling salesman who took the order, informed the firm of t’he fact, that they did not dissent from or object to this mode of payment, and that one member of that firm is now a member of the plaintiff firm. It is, we think, too clear for discussion that as proof of this one, isolated transaction would be no evidence of the alleged custom, so notice of it would be no evidence of notice of such custom. Many of the rulings and instructions of the trial court are out of harmony with the law applicable to this case as we find it to be. We need not particularize them. The judgment must be reversed and the cause remanded; and if the evidence on another trial is the same we find in this record, it will be the duty of the court, upon request, to give the affirmative charge for the plaintiffs. Reversed and remanded.