Wheeler & Wilson Manufacturing Co. v. Givan

Norton, J. This was a suit instituted before a justice of the peace in Cass county, on two promissory notes, one for the sum of $20.00, and the other for $25.00. There was a trial before the justice and judgment for the defendant, from which plaintiff appealed to the Circuit Court, where, upon a trial de novo, judgment was again rendered for defendant, from which plaintiff, after an ineffectual motion for a new trial, has appealed to this court. On the .trial it was agreed by the parties that the evidence would show that the notes sued on were executed in part payment for a Wheeler & Wilson sewing machine, sold by J. W. Moore as the agent of A. Sumner, the payee in- said note; that said Sumner at the date of said notes was the general agent of plaintiff, and since the maturity of the same, transferred them to plaintiff; that the whole amount of the other notes given for said machine has been paid in cash by defendant, and a portion thereof was paid to Moore; that at the time of the sale of said machine, it was agreed between defendant and said Moore, that said defendant should board said Moore and his wife, who was helping him, and his team, which was being used in the selling of machines, at a stipulated price for board then agreed upon, and that the amount of such board should be received in payment on said machine, and credited on the notes given for the same; that such agreement was one of the inducements to defendant to purchase the machine; that said Moore agreed to have the [92] amount of such board credited on the notes, and to receive it in payment thereof, and that this agreement was made at the time of the sale, and immediately before the execution of the notes; that the amount paid by defendant in such board, on said notes, equals or exceeds the balance of the notes sued on; that said Moore, as agent for said Sumner, sold Wheeler & Wilson sewing machines for cash, and received the money therefor, and as such agent, collected notes given for said machines to said Sumner; that the commission of said Moore as agent, was twenty-one dollars on each machine, and he was to pay his own expenses; that during the time he boarded with defendant, he sold fifteen or twenty of them; that plaintiff nor said Sumner ever ratified said agreement, and that no credit was ever entered on said notes for hoard, and that the same have been in the possession of plaintiff and said Sumner, and that they knew nothing of said alleged agreement. i. agent to sell: implied powers, I. Upon the above facts the case was submitted to the court without the intervention of a jury. The refusal of the court to give the following instruction on behalf of the plaintiffs, is the error complained of: “ If the court believes from the evidence that the defendant executed the notes read and sued on in this case, then the court should find for the plaintiff the amount which appears to be due thereon, notwithstanding the court may also believe that the defendant may have made with the agent who sold the machine for which said notes were given, the cotemporaneous parol agreement mentioned in the statement of the evidence, and may have furnished board to said agent, pursuant to said agreement of value equivalent to the sum so due on said notes.” The facts in the case show that Moore, the agent who sold the machine in question had authority to sell, and that he was to receive, as compensation for his services, twenty-one dollars for each machine sold. Under this authority he had a right only to sell, and in exercising this right in the absence of particular instructions, might sell according to [93] the usual mode of dealing in that particular trade, and might sell on credit if such sales were customary, in that business and locality. He had no right to barter, exchange, or pledge the property thus entrusted to him for sale, for his individual debt, antecedently contracted, or to be subsequently contracted. This is especially true in this case as the defendant was notified by a statement in the margin of the notes, “on which this suit is brought,” that “no agent is authorized to make any contract or verbal promise differing from that written and printed on the face of this note,” and the further condition, “that it is agreed between the maker of this note and A. Sumner that the Wheeler & Wilson Sewing Machine No. R. 488, for the use of whi'ch, to the maturity thereof, this note is given, is and shall remain the property of A. Sumner, and that in default of payment thereof said machine shall be returned to said Sumner, his agent or attorney.” In the case of Berry et al. v. Rhodes, 18 Mo. 147, it was held that when A consigned goods to B for sale on commission, a sale of them by B to C in payment of an antecedent debt of B to C did not divest A of his title in the goods. The court, in its opinion, quotes approvingly the case of Holton v. Smith, 7th N. H. 446, in which it was held that an agent having the goods of his principal to sell, cannot sell them to his own creditor in payment of his debt so as to pass title. 2. CASE ADJUDGED. II. Although an agent (known to be such) is ordinarily entitled to receive payment of any debt due to his principal in the course of his agency, yet he does . - . not thereby acquire any right to receive pay-' ment except in the ordinary modes of business. He has no right to change the security of his principal for his debt, or to make himself the debtor of the principal for the like amount in lieu of the person who owes the debt, without the consent of the principal to that effect. If an agent has -authority to receive for his principal a debt due from a third person to him, and the agent owes a like amount, or a greater, he has no right to substitute himself [94] as the debtor of the principal, giving him credit for the amount, or to set off the debt due by him to such third person. Story on agency, sec. 413, 429, 430; Buckwalter v. Craig, 55 Mo. 71; Greenwood v. Burnes, 50 Mo. 52; Wharton on agents, 210; Flanagan v. Alexander, 50 Mo. 51. The defendant dealing, as he was, with an agent of limited power, knowledge of which was imparted to him by the recitals on the margin of the note, could not bind the principal by making a contract beyond the authority of the agent. 1 Parsons on contract, 41; Tate v. Fvans, 7 Mo. 419; Goodman v. Simonds, 19 Mo. 106. We therefore, in the light of the facts of this case and authorities, think the court erred in refusing the instruction asked for by plaintiff, and for this reason the judgment will be reversed and the cause remanded. The other Judges concurring, except Judge Sherwood, absent. Reversed.