Nicholson v. Pease

[537] The' opinion of the court was delivered by Tyler, J. The defendant’s counsel requested the court to instruct the jury that if they found the facts stated in the plea relative to the $65.50 to be true, the question as to the extent of the agent’s authority did not arise and the verdict should be for the defendant. The plea contains the following averment in parenthesis: Said Redlon acting therein for him,” which, with the other averments, was traversed by the plaintiff, and thus the -extent of the agent’s authority became a question of fact to be tried. It is urged by defendant’s counsel that the plea alleges a sale on condition and contains no averment of authority in Redlon. It is true that there is no express averment of authority, but it is alleged that the agent acted for the plaintiff in this transaction, which averment is denied and made ah issue of fact for the jury, and could not properly be decided by the ■court as a question of law. It is also claimed that there was error in the instruction of ■the court that the burden was on the defendant to prove the agent’s authority to make the contract. The plaintiff admitted the agent’s authority to make collections for goods sold by him and to use money thus collected in payment of his necessary expenses, although he was furnished with funds for that purpose, and was also at liberty to draw on the plaintiff therefor. He denied that he was bound to pay third persons the agent’s bills for expenses, and claimed that he had paid the bill in controversy to the agent himself. When the plaintiff had delivered the goods to the defendant he liad, prima facie. a right to demand and recover of him the agreed price for the same. The defendant claimed that he had paid for the goods by his bill against Redlon for board and horse hire. The court held that, as the contract was outside of the general scope of the agency, the burden was on the defendant tfo show that the agent had authority to make it, or that he had been accustomed, to do business in this manner, and the plaintiff Jknew it or ought reasonably to have known it. [538] It has been seriously questioned whether a mere power to sell implies a power to collect. See Benjamin on Sales, ed. 1888, 703, and numerous cases cited. Putnam & Co. v. French, & Moore, 53 Vt. 402, went no further than to hold that a traveling salesman might make terms of payment in the customary manner. “ An agent has not, prima facie, authority to receive-anything but money in payment. This is elementary law.”' Benjamin on Sales, supra; Aultman v. Lee, 43 Ia. 404; Bevis v. Heflin, 63 Ind. 129; Sangston v. Maitland, 11 Gill & J. 286. The result is we find no error in the trial and the judgment of the County Court is affirmed. At the present term of this court the defendant has filed his-petition for a new trial on the ground that he was taken by surprise at the case made by the plaintiff at the former trial and on account of newly discovered evidence. Upon careful examination of the testimony produced in support of the petition we find, it does not present a case within the rule repeatedly laid down: by this court relative to new trials. Thayer v. Cent. Vt. R. R. Co., 60 Vt. 214. The petition is dismissed with costs.