Emerson-Brantingham Co. v. McNair

Rose, J. This is an action to recover from defendant $342.50 for an engine plow manufactured by plaintiff. Defendant was plaintiff’s agent at Crawford, and for some time had been in possession of the implement under a technical contract of agency which made him liable for wholesale prices of articles sold by him. At a time when he was authorized to return to plaintiff the plow as unsold stock, he sold it and shipped it to the purchasers, and so notified plaintiff by a letter in which he requested the manufacturer to ship directly to them some specifically described, attachments. The substance of the defense pleaded is that, before the plow was sold, the agency liad been terminated and defendant ordered to return to plaintiff the stock in his possession; that the goods on hand, including the plow in controversy, were prepared for shipment to plaintiff; that, before they were in fact shipped, there was an opportunity to sell the plow, and that plaintiff, upon being notified thereof, directed defendant to ship to the purchasers such parts of the plow as were in his possession,- the missing parts to be shipped directly from head 554 quarters; that defendant followed such directions; that thereafter plaintiff took charge of the transaction, sent experts to set up the plow and to make settlement .therefor; that plaintiff credited defendant with a return of the plow. The trial court directed a verdict in favor of plaintiff, and defendant has appealed. Defendant concedes: “The only real, question in the case is whether or not there was evidence which should have been given to the jury?” The evidence shows without contradiction that, with the exception of some attachments, the plow was in the hands1 of defendant as plaintiff’s agent; that the price, to the agent, was f342.50; that by the agent the plow wras shipped from Crawford to the purchasers; that he directed plaintiff by letter to ship to them the necessary attachments; that the purchasers received the plow and attachments, but never paid for them or returned them; that plaintiff never received the purchase price; and that the property was never returned or tendered back. The correct interpretation of the contract of agency and of letters binding defendant is that he sold the goods as agent. Evidence establishing a defense without varying or contradicting writings by which defendant is bound has not been pointed out by him.' Error in the record does not affirmatively appear. Affirmed.