Riley v. Wheeler

The opinion of the court was delivered by Redfield, J. This was an action of trespass, for dismantling and removing a house belonging to the plaintiff, and situated on the land of one Lawrence, in the town of St. George. The jury have found the fact that Lawrence was authorized by the plaintiff to sell the house for the sum of $25, and that he sold it to the defendants — who acted in behalf of a school-district — -for that sum, as the agreed price, and authorized them to take possession and remove it, and pay for it after the removal if they so elected. The defendants entered into possession of the house, and while defendants wore preparing the house for removal, and after some labor and expense in such preparation, the plaintiff forbade the defendants removing the house, ordered them to desist, and denied that Lawrence had any agency or authority to sell the house. The defendants persisted in removing the house, and for such alleged trespasss this action is brought. [193] The court charged the jury, that “ if Lawrence had authority from the plaintiff to sell the house for $25, then Lawrence was authorized to agree to defendants taking possession of the house and removing it, without payment of the price until after the removal, and at their convenience,, upon the agreement of defendants that they would pay.” When this case was before the court at a former term, 42 Vt., 528, it was very properly decided that a purchaser of a chattel could not take possession against the will of the vendor, without payment of the price. But whether an agent, authorized to sell, was authorized to part with the possession without the payment of the stipulated price, was not discussed. It is however stated in the opinion, by Wheeler, J., that “ the parties agree that Lawrence had no legal authority to sell' upon credit.” “ Authority to sell, does not carry with it authority to sell on credit, unless such be the usage of trade.” 1 Par. on Con., 50. Such rule of law was formerly strictly applied to factors, who are general agents in a particular line of business. But it is now settled as a rule of law, that a factor may sell on a reasonable credit, in the absence of all contradictory proof. Story on Ag., p. 249, §209 ; or, as is very well stated by Mellen, J., in Greeley v. Bartlett, 1 Greenl., 172, as the rule of the law merchant, “that a factor may sell the goods of his principal on a reasonable credit, unless restrained by instructions or special usage.” We think this a sale on credit. It was specially agreed that defendants should not be required to pay for the house until after the removal — mud then at their convenience. Were this an action for the price, and the defence that the action was prematurely brought, by reason of credit, an agreement without limit of time would be unavailing as a defense. But in this case, there was a credit until after the removal: which was certain — or capable of being made certain. Besides, in a case of this kind, the very essence of the inquiry is whether an agent, authorized to sell a particular chattel, can part with the chattel sold without payment of the stipulated price, and thereby subject his principal to the risk of its loss. The agent would, indeed, be personally responsible for the [194] property sold, in case he exceeded his authority. But the owner may affirm the sale, or repudiate it, and treat the purchaser as a trespasser at his election. Story on Ag., §§ 224, 226 ; Peters v. Ballister, 3 Pick., 498. In this case Lawrence was a special, as distinguished from a general agent. He was authorized to sell one particular chattel. And being invested with special and limited powers, he could not bind his principal in any act not warranted by the express authority delegated to him and what was necessarily incident thereto, that he may perform the act, to which his agency applied. He can invoke no general custom or usage, for such cannot well apply to the private sale of one single, isolated chattel. It is claimed by the plaintiff, that the agent, though not authorized to sell on credit, could rightfully waive his lien for the price, and allow the purchaser to take the possession, without payment. If this were so, the agent might virtually sell the goods of his principal on credit, and by indirection place them beyond the reach of the owner, and avoid all personal responsibility himself. We think the proposition of law in the charge of the court, that the agent, being invested with authority to sell, was thereby empowered to surrender the possession of the property to the purchaser without payment, upon their promise to pay for it at seme future time, error. Whether, the ground of plaintiff’s claim having been found against him, the defendants can invoke any other principle of law in their defence, we have no occasion to discuss. ■The judgment is reversed, and the cause remanded.