D. Sachs & Sons v. Garner

Ladd, J. It appears that oral orders were given by the defendant for whisky to be shipped by the plaintiff from Louisville, Ky., to Persia, Iowa; the freight to be paid by [425] liim in the first instance, and subsequently deducted from the purchase price to be handed to plaintiff’s traveling salesman; or remitted to the house according to his choice. The salesman taking these orders sent written memoranda thereof noting time of shipment, and on some of them were stamped the wor.ds, “This sale is not complete until approved by D. Sachs & Sons.” This is not important, however, for the reason that the authority of the salesman was limited to taking orders subject to such approval. No inquiry was made by the defendant concerning his powers. No part of the price was paid, nor any of the goods delivered, when the orders were taken, and he knew from whence the whisky was to come. The salesman did nothing calculated to mislead him into the belief that the sales were completed; nor was the character of the transaction such as to indicate apparent authority on his part to make a sale, rather than to receive orders for goods subject to the approval of his principal. Had the plaintiff refused to ship, no one would say, under these circumstances, .that a cause of action accrued in favor of defendant. Why? Because the salesman had no authority, actual or apparent, to sell, and hence théi’e was no sale until the plaintiff accepted the orders by delivery or otherwise. As the agent did not undertake to do more than take orders, and the defendant was not misled into believing a sale was intended, these cannot be treated as contracts until accepted. As said by Cole, J., speaking for the court, in Tegler v. Shipman, 33 Iowa, 198: “To take an order for liquors is one thing, and to agree to accept the order, and to fill it, is quite another; the former is a proposition, while the latter is the consummation of a contract.”. The orders were not accepted until they reached Kentucky, and for this reason that was the place of the contract. Whitlock v. Workman, 15 Iowa, 351; Engs v. Priest, 65 Iowa, 232; Wind v. Iler, 93 Iowa, 316; Gross v. Feehan, 110 Iowa, 163; Tegler v. Shipman, supra. — Aeeirmed.