Henry Bill Publishing Co. v. Durgin

Hooker, J. The defendant appeals from a judgment in trover upon a verdict directed by the court. The action was commenced by declaration filed February 2, 1892, and charges the conversion “heretofore, to wit, January 1, 1886,” of “a certain large number of books, to wit, of 500 copies of a book entitled ‘Twenty Years in Congress,’ of the value of $1,000; and a certain large amount of lawful money of the Hnited States, to wit, of the sum of $1,000, of the value of $1,000; and a certain large number of bank bills, gold certificates, silver certificates, greenbacks, and gold and silver coin, to wit, of the value of $1,000.” The plea was the general issue. The plaintiff is a foreign corporation, engaged in publishing books, among which is the book named, and the defendant engaged in the sale of said book under a contract with plaintiff. The contract was the result of correspondence, and consisted of a certificate of agreement, signed by the defendant, and a certificate of agency, signed by the plaintiff. They are as follows: ’ “ Oertieicate oe Agency. “This certifies that Clinton C. Durgin, of Hillsdale, Hillsdale Co., State of Michigan, is duly appointed general agent on commission for the sale of ‘Twenty Years in Congress’ in the townships of all Kent county, State of Michigan, and other townships, from time to time, as he may need them in thorough canvass, provided his success is mutually satisfactory, under the following rules and conditions: — 461 — “1. No other agent will have the right to occupy the above-named territory, nor will the said Durgin be permitted to canvass upon any other territory knowingly until it is duly allotted him, under penalty of forfeiture of list. “2. The agent is required to sell books at the regular printed prices, except to those who will render sufficient assistance to warrant a discount, such as clergymen, editors, those who take more than one copy, etc., and to sell no books except by subscription. “3. The agent is cautioned against setting any definite time for the delivery of books, and to have every subscriber write his or her name as much as possible. (See book of ‘Private Instructions.’) “4. The agent will be allowed a discount of fifty (50) per cent, from the printed subscription prices (see prospectus sheet and subscribers’ cards) as his commission for soliciting and delivering, i. e., for the muslin binding he will receive $3.75; for the sheep, $4.75; for the seal Eussia, $5.50; and for the half morocco, $6.25; and a discount of 40 per cent, on the edition de luxe, $8.00. “ 5. All books undelivered may be returned within three (3) months from the time of shipment (if in good condition) at the prices charged, and the same will be credited to the agent, provided he puts .his name on the box, so we may know from whom it comes. “ 6. The agent is desired to recommend to us gentlemen and ladies to become agents (giving name and P. O. address), and, if such parties engage with us, we will give him $10 as a premium for each person "so recommended when he has delivered 100 books. No premium allowed unless the party was recommended previous to his engaging with us. “7. The agent will not be permitted to dispose of his agency, or the territory allotted him, without written permission from us. “ 8. This certificate takes effect when the agent returns to us the ‘certificate of agreement,’ properly signed, and bearing even date with this; otherwise it is null and void. “Dated at Norwich, Conn., this 20th day of July, A. D. 1883. “The Henry Bill Publishing Company, “ Chas. C. Haskell, President. “N. B. Having about 1,000 agents now in the field, in different parts of the country, it will be impossible for the publishers, in the press of business, to ascertain in — 462 — regard to the responsibility of names offered as security by many, and especially those at a distance. They therefore suggest, as the better way for the agent, so that his order may be promptly filled, to remit fnnds with the order, as per our printed instructions, in which case the books will go by freight line instead of express, making a saving of expense; or he can have them forwarded per express, with bill for collection on delivery' (C. O. D.), and, if unable to take and pay for all at once, can doubtless arrange with the express agent at the point of delivery to take a part at a time. Cash orders will be filled in advance of all others. The agent will be required to pay particular attention to our book of Private Instructions, furnished to each agent, and, as far as possible, observe all its requirements.” “ Certieicate or Agreement. “ In consideration of having received the general agency for the work entitled f Twenty Years in Congress,’ in the townships of Kent county, State of Michigan, I do hereby agree: “1. To thoroughly prepare myself on the book, according to the publisher’s printed instructions, before entering the field to canvass. “2. To enter no territory to canvass until it has been duly allotted me. “3. To canvass thoroughly each township by school-districts, and to continue the canvass until I have finished all territory entered upon. “4. To devote my exclusive time to canvassing for the books of the Henry Bill Publishing Company while in their employ. “5. To report my success by card and letter each week, giving the number of subscribers for the week, also the whole number to date, and to report none but bona fide subscribers. “6. To prosecute the canvass, and to follow the publisher’s printed instructions, to the best of my ability. “7. To commence canvassing within ten (10) days from the date hereof. “Dated this 24th day of'July, A. D. 1883. [Signed] “Clint. C. Durgin, Agent, [l. s.] “ Grand Rapids P. 0., Kent Co., State of Michigan. “Hillsdale--, Hillsdale, Michigan.” Under this arrangement the defendant took orders and — 463 — made delivery of the first volume of said hook, and the second' volumes were shipped from Norwich, Conn., upon June 8, 1886. Before shipment, plaintiff required a guaranty of payment, which defendant gave, his father becoming surety therefor. The correspondence in relation thereto was as follows, so far as it appears: “Office of Henry Bill Publishing Company. “Norwich, Conn., Jan. 30, 1886. “Dear Sir: Your favor of the 26th inst. received. The second volume is practically complete, and we expect to be able to ship books within 10 or 12 days, but, of course, they cannot get to you in time for yon to deliver and receive your money and pay up your note. The note is payable at Grand Bapids, and if you can arrange to take care of it there it would be all right] otherwise it would have to be renewed for a short time. It will be necessary for you to give us security on the 2nd volume, and to cover the note also, before we can ship the 2nd volume. “ Yours truly, “Chas. 0. Haskell, Pres’t.' “0. C. Durgin, Esq., “Grand Bapids, Mich. O. B.” “New Market, N. H. — Bochester, N. Y., “Eeb. 20, 1886. “Chas. C. Haskell, Esq., “Norwich, Ct. “Dear Sir: My son, Clinton C. Durgin, of Grand Bap-ids> writes ine that the second vol. of Blaine’s book, f Twenty Years in Congress,’ is ready for delivery,'but that they will not be furnished unless the pay is guaranteed. You sent the first vol., I think, on my guaranty, and I hereby guarantee the pay for the second. This has been delayed by my absence from home. Hoping that this may be satisfactory, I am, “Yours truly, “D. W. C. Durgin, “Ex-Pres. Hillsdale College, Hillsdale, Mich. “New Market, N. H.” The books were thereupon shipped (June 8, 1886) to the defendant. Bepeated requests for payment having proved unavailing, this action was brought. The plaintiff claimed — 464 — a balance of $17.73 upon the sales of volume 1, and $601.65 on sales of volume 2. The judgment was for $882.45, being the full amount claimed, $619.38, with interest. The contract is peculiar. It consists of a certificate of agency, the receiving of which is made the consideration for defendant’s promise to canvass. This certificate of’ agency prescribes the rules and conditions upon which the defendant was permitted to sell plaintiff’s book. It nowhere expressly obligates the plaintiff to furnish him any books, or to pay him any compensation. It says that he “ will be allowed a discount of 50 per cent, from the printed prices;” not that he will be paid, or may deduct from moneys received for plaintiff, 50 per cent. This is as consistent with the theory that he was to purchase the books at such discount as that they were to continue the property of the plaintiff. The next paragraph is consistent only with the former theory. We must conclude that it subserves some useful purpose. If so, what is it? It permits defendant to return the books upon certain conditions. - If he were not a purchaser, he would have the right without this provision, which would be unnecessary; but, upon the theory of purchase, it secured him the valuable right of return if he could not deliver the books-This theory is also supported by the significant postscript to the certificate of agency, which must be treated as part of the contract. This shows that the goods were to be paid for upon delivery, either by cash in advance or by payment to the express agent before delivery. It cannot be supposed that the title was expected to remain in plaintiff after payment. It may be said that these books were furnished without such payment; but, while this is true, the defendant was required to secure the payment before plaintiff would ship the goods. Upon the evidence contained in- this record we think that title to the books passed to the defendant, and that he could not properly — 465 — be held for unlawful conversion of the same,, or of the money for which he may have sold them. It is no uncommon thing for persons to become sole agents for the sale of specific articles which they only obtain by purchase, which arrangement may be of advantage to both the vendor and so-called “ agent.” The agency begins and ends with the exclusive privilege of handling certain goods in given territory. This is' apparently one of those cases. We think it unnecessary to discuss the other questions raised. The jury should have been directed to render a verdict for the defendant. Judgment reversed, and no new trial will be ordered. McGrath, 0. J., Long and Grant, JJ., concurred. Montgomery, J., did not sit.