Clark v. Haupt

Grant, J. (after stating the facts). It is clear that a gross fraud was perpetrated upon the plaintiffs. The notes for $500 were forged. Pressburg, soon after the transaction, fled, and neither he nor the note for $175 has since been heard of. Obviously, this transaction ought not to stand, unless the inflexible rules of law require it; and we think they do not. Pre'ssburg, in fact, had no authority to make the sale. It was submitted to the jury upon the theory that plaintiffs had held Pressburg out as their agent or manager authorized to sell. It is not claimed that even Pressburg had represented himself as clothed with authority before Mr. Long went with him to see Mr. Haupt. In the first interview with Mr. Haupt, Pressburg did not claim authority to sell, but called himself simply an agent, and introduced Mr. Long as the principal. Mr. Long said nothing showing any authority in Pressburg. At the last interview when Mr.' Long was present, both Mr. and Mrs. Haupt declined to buy, and understood that the piano was to be promptly removed from their house. Neither of the plaintiffs made any further effort to sell it. When Pressburg next visited them, he told them that he would see his employers, and report what they would do. This was notice to them from Pressburg himself that he had not then the authority to sell the piano. Any statements made to Mrs. Haupt or [215] to the defendant after that of his authority were incompetent to prove the agency, and this was all the proof there was. They were fairly put upon their guard that they must deal with Pressburg at their peril. The least price which had been fixed by the plaintiffs was $400, according to defendant’s own testimony. There is no evidence upon this record that it was worth less. On the contrary, it clearly appears that this was a valuable piano, and that the regular price was $500. The proposition of Pressburg to sell at half price should have awakened their suspicions. A few moments’ walk to plaintiffs’ store, or a telephone message, would have ascertained Pressburg’s authority. We think no title passed, and that the plaintiffs did nothing to estop them from denying the agency. The court should have directed a verdict for plaintiffs. Judgment reversed, and new trial ordered. Long, C. J., and Moore, J., concurred with Grant, J. Hooker, J., concurred in the result.