Ismert-Hincke Milling Co. v. Natchez Baking Co.

Ethridge-, J., delivered the opinion of the court. The appellant, through its traveling salesman, sold to the appellee two hundred and ten barrels of flour, to be contained in two hundred ninety-four jute one hundred forty-pound sacks, at twelve dollars and eighty-five cents per barrel, less the freight, amounting to eighty-two dollars and ninety-one cents; the salesman taking a written order which reads as follows: “Memorandum of Contract in Duplicate. “No. 1. August 3, 1917. “The Ismert-Hincke Milling Company., of Kansas City, U. S. A.,’ sell, and Natchez Baking Company, of Natchez, Miss., by, the following articles upon the terms, conditions, and warranties stated below and ion the back hereof, and upon no other: “Time of shipping, thirty days. “F. o. b., Natchez,, Miss. “Terms: Sight, or sight on arrival; draft with bill of lading attached, through same Bank of Natchez, Miss. “Amount . “Bbls., Brand Package Price. 210 Thunderbolt 110 Jutes $12.85 [211] OK BOV “This order is subject to confirmation by the seller at tlieir main office. “Natchez Baking Co., Buyer, “By Simon. “Tsmert-Hínoke: Mlg. Co., Seller, “By J. M. Kirk. “Conditions Governing the Within Sale and Part of Contract Therefor. “No. 1. Unless otherwise specified, time of shipment to be within sixty (60) days from date of contract. Goods not ordered out within sixty (60) days from date of contract, or within contract shipment period, are, without notice to the buyer, subject to the following carrying charges: Flour: Five (5)' cents per barrel for every thirty days, or fractional part thereof. Feed: Twenty-five (25) cents per ton for every thirty (30) days, or fractional part thereof. “Such carrying charges become due and payable at the beginning of each thirty (30) day period after the termination of the time of contract shipment, the buyer hereby agreeing to pay the same, and shall continue until contract is terminated by ten days’ notice of such termination mailed to purchaser. “No. 2. Failure on the part of the buyer to order out purchase before expiration of extended contract period gives the seller the right to cancel the contract, or unshipped portion of same, and to collect from buyer, on unshipped portion, the difference between the contract price and the market value of the same at date of termination, together with all accrued carrying and all selling charges. “No. 31. The seller, under the terms of this contract, shall have no less than fourteen (14) days from receipt of shipping instructions to satisfy same and make sliipments. Failure on the part of the seller to complete shipments within primary contract time, or within fourteen (14) days from receipt of shipping instructions (unless prevented by conditions beyond his control), shall en [212] title the buyer (a) to cancel such specified portion, and collect from the seller the difference in value of such portion between date of purchase and date of cancellation; or (b) to continue the life of said contract at credit of five (5) cents per barrel of flour, and twenty-five (25) cents per ton for feed for each thirty (30) day .period or fractional part thereof,, beyond the limit of primary contract shipment, or said fourteen- (14) day period, it being agreed that,- unless notice to the contrary is served on the seller, clause (b) of this paragraph will govern, if shipments are not made within limits as provided above. “No. 4. No verbal condition, modifications, or warranties can alter this contract. “No. 5. Seller is not responsible for delays in transit.” This order was sent to the milling company by its salesman, and was accepted as sent; the acceptance containing the same conditions as the contract. When the shipment' arrived, the appellee refused to pay the full purchase price, and the matter was taken up between the buyer and the seller, and it was finally agreed that the buyer would pay the draft which accompanied the shipment, with the exception of three hundred and fifteen dollars, and that this would not prejudice the right of the appellant to recover that amount if it should be determined that the buyer was liable for the amount. The buyer contends that there was an understanding between the buyer and the salesman that the flour so ordered was to be made from old wheat instead of new wheat, and that the- difference between the price of flour made from old wheat and that made from new wheat amounted to three,hundred and fifteen dollars, for which this suit is brought.. It appears from the appellee’s testimony that after the order was. given and signed the salesman left a duplicate of the order with the appellee, and on inspecting this duplicate the appellee observed that it did not contain the words “old wheat,” to indicate that the flour was to be made from old wheat. Upon discovering this the appellee sought the salesman, who was in the city and got him to indorse [213] upon the duplicate the words “old wheat;” but the order sent to the appellant by the salesman did not contain these words, nor was the milling company notified of any understanding prior to the acceptance of the order and the shipment and arrival of the flour at Natchez. There was a verdict and judgment for the defendant from which this appeal was prosecuted. The appellant contends that under the terms of the contract the salesman had no power to make a contract nor to agree to modifications of a contract, but his sole power was to solicit' orders and send to his principal for acceptance, and that the contract accepted by the appellant is the sole contract, and that under this contract the appellant is entitled to recover; while the appellee contends that there ivas no stipulation in the contract as to the kind of wheat from which the flour was to be made, and that the real agreement between the buyer and the soliciting salesman may be proved by oral evidence. It is well settled law that an agent can only bind his principal when acting within the scope of his .powers, and a person dealing with the agent must know the extent of the agent’s powers to bind his principal. It is also well settled that a party has a right to contract, by providing in the contract that agreements not indorsed thereon are not binding on the principal. It wras the duty of the buyer to see that the contract contained all of the agreements before signing and delivering the same, and that he cannot vary his wuitten contract by oral .evidence wdiere the contract is specific and certain. The contract in question distinctly notified the buyer that verbal agreements would not be recognized, and if he desired to have the contract contain the wmrds “old wdieat,” he should have notified the seller before acceptance and shipment. It is difficult to see how7 commerce under present conditions could be carried on under any other rule. It follows that the judgment of the court below should [214] be reversed, and judgment rendered here for the appellant. Reversed, and judgment here for appellant. Reversed.