Jones v. Warner

Bissell, J. The only question presented by the motion, is, whether the evidence, offered in the court below, was properly rejected. The evidence was objected to, on two grounds: 1. that Wilde, the clerk, had no authority to make the contract offered to be proved ; and 2. that the evidence went to contradict the bill of lading. We are of opinion that, on both grounds, the objection to the testimony was well taken. 1. Had Wilde any authority to make the contract offered to be proved, by Punderson s deposition ? The case finds, that Wilde was the clerk of the plaintiff. — 47 — It also finds, that the usual course of business was, to have coals shipped and consigned to himself, when not paid for, on-giving the older for their delivery. It is found, that the coals in question were not paid for, on the delivery of the order. The contract set up, then, was out of the usual course of business ; and there is no pretence, that the clerk had any express authority to make such a contract. Is such an authority to be implied, from his situation, as clerk, in the employment of the plaintiff? The defendant’s counsel have affirmed this ; and in support of the proposition, a number of authorities has been cited. The case of Rex v. Almon, 5 Burr. 2686. is relied upon. That case merely decides, that evidence of buying a libel, in the shop of a known bookseller, is sufficient prima facie evidence to convict him of the publication. Starkie, in his treatise on Evidence, (2 Stark. Ev. 851.) refers to this case, and, in view of the decision, thus lays down the rule-That the sale, by an agent, in a shop, in the usual course of business, is prima facie evidence of a publication, with the knowledge and privity of the owner; and he subjoins the following remark : “ Although authority to commit an unlawful act will not, in general, be presumed : yet it is otherwise in the case of booksellers and others, where a book or libel is purchased from an agent, in the usual course of trader." In Winfield v. Packington, (2 Carr. & Pa. 599.) it was decided, that where the clerk of a common carrier informed the sender, that goods would be carried at a certain price, the carrier could not charge an advanced price, although he had instructed his clerks not to take such goods, below the price charged. Here was no established course of business. The clerk had merely departed from his private instructions, and that in a matter affecting the price only. The case of Capel v. Thornton, 3 Carr. & Pa. 352. proves only, that an agent authorized to sell goods, has, (in the absence of advice to the contrary) an implied authority to receive the proceeds. And in Ashbourne v. Price, 2 Dowl. & Ryl. 48. it was held, that the admissions of an attorney’s clerk, made in the usual course of his business, were binding upon his principal. A very superficial examination of these authorities, will — 48 — evince, that none of them is decisive of the question now before us. They certainly fall very far short of proving, that a mere clerk in a mercantile establishment, may deviate from the usual and established course of business : that he can bind his principal, by a sale on credit, where the usage is to sell for cash only. The general principle is believed to be well settled, that the implied authority of an agent is limited, by the usual course of dealing; and that the master is no further bound, by the acts of his servant, than the authority of the servant to bind him, may be inferred from the manner in which the master has dealt with his servant, and through him with others. Thus, the master is not responsible for goods ordered by his servant, in his (the master’s) name, but without authority, unless he has, on former occasions, paid for goods ordered by him, or there is some other evidence, to show that he had authority for what he did. Maundier v. Conyers, 2 Stark. Rep. 281. So also, if a man send his servant with ready money to buy goods, and the servant buy upon credit, the master is not chargeable, unless he has before authorized him to take up goods on credit. Paley on Agency, 137. Hazard v. Treadwell, 1 Stra. 506. It is also laid down, that in the absence of particular instructions, a general power to sell, implies a power to sell in the usual way;-and the authority of an agent to sell on credit, depends entirely on the fact, of that being the usual mode of dealing in the particular trade in question. Paley on Agency 173. 2 Stark. Ev. 57. Chitty on Contracts, 61, 62, Wiltshire v. Sims, 1 Campb. 258. 2 Chitty’s Rep. 353. Here, the usage was for the seller not to part with his property until it was paid for. The contract offered to be proved, was not in conformity, but opposed, to the usage ; and as there is no claim that the clerk had any express authority so to contract, the principal was not bound ; and the property in the coal was not parted with, by him. 2. Was the evidence properly rejected, on the ground that the contract offered to be proved, contradicted the bill of lading ? It cannot be, nor was it denied, in the argument, that the — 49 — evidence offered, was inconsistent with the bill of lading, and directly opposed to it: And it, surely, cannot he necessary to cite authorities to prove, that parol evidence cannot be received to vary or controul a written contract.-The existence of the rule was admitted, by the defendant’s counsel, but its application denied. It is said, the coals were sold and delivered at Rondout, on the river Hudson ; that this is proved, by the letter of the 8th of October : and that the evidence offered went to prove a contract, in virtue of which the coals, so sold and delivered, were to be transported directly to East-Haddam. It is further said, that Punderson signed the bill of lading, in his capacity of a common carrier, and not as the agent of H & S. Lee ; and that the defendant ought not to be precluded, by this act, from proving the contract. The argument proceeds on a false assumption throughout. The letter of the 8th of October proves no such contract as is claimed. It shows, indeed, that an order had been given for the delivery of the coals ; and that they had not been paid for. But it contains no intimation, that they were not to be shipped to the plaintiff; or that he intended to pari with his property, until it was paid for. The truth is, there never was any contract made between the plaintiff and H & S. Lee, but through Punderson. He was the bearer of the letter of the 29th of September. And the letter conclusively shows, that nothing was then settled. No contract was then made. Terms of payment are there proposed. The plaintiff was empowered to draw either through the East-Haddam, or New-London bank, or to direct any other mode of payment. The very agreement offered to be proved, was claimed to have been made, by Punderson, as the agent of H. S. Lee. How, then, can it be claimed, that he was not their agent in signing the bill of lading ? Was he their agent for one purpose, and not for another ? Was he authorized to make the contract claimed ; and had he no authority to vary that contract ? Either Punderson was the agent of H. & S. Lee, or he was not, And it is of no importance, so far as the present question is concerned, which side of the alternative is adopted. If he was not their agent, no contract for the delivery of the — 50 — coals at East-Haddam, was ever made. If he was their agent, then the verbal contract claimed to have been made between him and Wilde, was merged in the bill of lading. The question is, what contract was, in fact, made ? The letter of the 29th of September, the order and the bill of lading constitute an express contract. And they constitute the entire contract. How, then, can it be said, that the parol evidence was not offered to vary or controul the written contract ? Again ; for what purpose, it may be asked, was the deposition of Punderson offered? The claim on the part of the defendant, was, that Punderson was authorized to deliver, and had in fact delivered, the coals to H. & S. Lee. The authority was denied ; and this was the point in issue. But the bill of lading gave him no such authority. On the contrary, it repelled the idea, that he was thus authorized. The parol evidence, then, was offered to prove such an authority, in opposition to the bill of lading, and was intended to controul it. Can it be possible to imagine a course more clearly within the rule ? It has, however, been contended, that the letter of the 22nd of October recognizes the contract offered to be proved ; and is a waiver of the contract contained in the bill of lading. If it were proved, that the plaintiff knew any thing of the contract sworn to by Punderson, there would be some foundation for the argument. But there was not the slightest evidence of that fact; and the letter itself contains nothing, from which the inference can be drawn. Was here, then, any waiver ? The plaintiff, doubtless, knew, that the coals had been transported to East-Haddam ; and if he looked only at the bill of lading, (the only contract, of which there is any proof, that he knew any thing,) he knew that they had been carried there wrongfully, and in direct violation of his contract with H. & S. Lee.-He was probably informed of their failure ; and he manifests a wish to obtain payment for his property. And is this to be tortured into a waiver of his rights? We think not. The documentary evidence in the case, clearly proves, that it was not the intention of the plaintiff to part with his property without payment. The evidence offered went to contradict this, and to establish a contract of an entirely different character. We are of opinion, that the evidence was properly rejected ; and the rule must be discharged. — 51 — In this opinion the other Judges concurred, except Waite, J., who gave no opinion, having been of counsel in the cause. New trial not to be granted.