Diversy v. Kellogg

Mr. Chief Justice Walker delivered the opinion of the Court: It is first insisted that Bose was not, at the time he received the liquor, paid the charges, and gave the receipt in appellant’s name, his agent. The evidence clearly establishes the fact that he was his agent, and had authority to order the liquor in ■September. And whether he was acting as such, or whether his authority had been revoked when he received this consignment, was a question for the determination of the jury. On that question, the evidence was conflicting. He says it had ceased, but others state that he was attending to appellant’s business in closing it up, and he evidently assumed to have authority, to act for him, in giving the receipt to the warehouseman in appellant’s name, and removing the liquor to his late place of business. Hor does it appear that any person was informed that he had ceased to act as appellant’s agent during the time all these transactions were occurring. We are therefore of the opinion, that the jury were warranted in finding that his acts were binding upon appellant. Whether Combs was authorized to, or did, rescind the contract, and receive the liquor from Bose for appellant, were also questions for the consideration of the jury. And on the first of these questions there seems to be no evidence, unless it can be inferred, that an agent who travels to solicit orders for a commercial house, also has authority to cancel his contracts, and receive back goods shipped to and not satisfactory to a customer. The nature of the employment would not seem to embrace such authority, and we can not judicially know that it does, and in the absence of proof we can not hold, that it was within the scope of his agency. On the other question, if it were conceded that such an agency embraces the authority to take goods back, after an order has been filled, the evidence is uncertain. Combs seems to have offered to sell the liquor as the property of appellant and not as that of appellee; while Rose says he did take the liquor back. In this conflict it was for the jury to determine, and we are not disposed to disturb their finding. It is again urged that the liquor was not of the quality ordered, and appellant was not, therefore, bound to accept it. If appellee shipped, within a reasonable time, the amount and quality of liquor sold to appellant, in the manner directed, the property vested in the latter, and it was at his risk from the time it was shipped. If after shipment, a portion was drawn out by others, and it was filled with other spirits, so as to render it of an inferior quality, then the loss must fall upon the purchaser. As soon as goods are delivered to a carrier, under a contract of sale, the title vests in the purchaser, subject to stoppage in transitu, but with no other lien, unless expressed in the terms of the sale. In this case, Combs states, that he knew a good article of imported gin was shipped to appellant, as directed, and if this be true, and the jury seem to have so found, no reason is perceived why appellant should not pay for it. Or even if a different kind from that which was ordered was shipped, and appellant received it and appropriated it, he thereby made the property his own, and must be held liable to pay what it was reasonably worth, under the common counts. If it was a different quality from that purchased, he was not bound to accept it, but might, upon learning ii¡s quality, within a reasonable time, give notice that he declined to receive it, and thereby avoid liability. In that case the property would not become his until he accepted it with a knowledge of its quality, or after having a reasonable opportunity of determining its quality. In this case there is evidence strongly tending to prove an acceptance, and it was for the jury to say whether the appellant did, by his agent, receive the liquor, and retain it an unreasonable time after acceptance, without giving notice that it was rejected. There seems to be no evidence which explains why it was taken from the warehouse, if, as ¡Rose says, “ he did not know whence it came.” He knew that he had given the order, and must have known the character of the contents of the cask, and we cannot believe, unless some explanation was given, that he did not know that it was from appellee, and he does not pretend that he notified him that the liquor was rejected. It is insisted that the court erred in refusing to give the fifth instruction asked by appellant. It asserts that appellee could only recover by showing that ¡Rose was appellant’s general agent, and acted within the scope of his authority, or was his special agent to receive this pipe of gin ; and, unless he proved that his general agency was continued after appellant sold his store to Myers & Turney, or that Bose was specially authorized to receive the particular pipe of gin. This instruction ignores entirely the fact that if Bose was the general agent of appellant, and as such was acting within the scope of his authority when he ordered the gin of appellee, his acts would still bind appellant within the scope of that authority, after it ceased, until appellee was informed of that fact. This instruction was therefore properly refused by the court. The tenth instruction asked by appellant and refused by the court, asserts that if the transaction was merely a conditional order to send a certain quality of gin, if it could be found, and appellant received no advice of shipment, he was not compelled to notify appellee that Bose’s agency had ceased, in order to relieve himself from responsibility for Bose’s unauthorized acts, after appellant had sold to Myers & Turney. We do not perceive upon what principle the failure of appellee to notify appellant of the shipment, could release him from the acts of his former agent, or relieve him from giving notice that his agency has ceased. We do not know, as a matter of law, that appellee neglected any duty in failing to give notice of shipment, when the goods came in the regular time of transportation. The goods were ordered, shipped and received, so far as we can see, in the usual course of trade, and. the failure to advise appellant, in such a case, that the goods had been shipped, released appellant from no liability or duty. We therefore perceive no error in refusing this instruction. The last clause of the ninth instruction asked by appellant, was not improperly stricken out before it was given. When the admissions of a party are introduced in evidence by the opposite party, as evidence generally, they are proper for all legitimate purposes. When admitted, if inconsistent and contradictory, they might be entitled to but little weight, or if they showed a want of veracity, that would be his misfortune. But in this case his veracity was not in issue, and we do not perceive that this clause of the instruction was pertinent to any issue before the jury. We do not see that any injury resulted to appellant from the modification of the instruction. After a careful examination of this entire record we perceive no error, and the judgment of the court below must be affirmed. Judgment affirmed.