Smith v. Droubay

Bartch, C. J. The' plaintiffs, as a co-partnership, under the name of M. E. Smith & Co., were wholesale dry goods dealers in Omaha, Nebraska, and brought this action upon an ac — 448 — count for goods sold and delivered. The defendant, who was a retail merchant in this state, filed a cross-complaint wherein, among other things, it was alleged that the purchase of the goods which caused this controversy, was made August 5, 1897, through the plaintiffs’ duly authorized agent and salesman; that at the time of the sale the agent expressly agreed that all of the goods would be delivered to the defendant in Tooele City, Utah, within twelve days from the date of sale; that the goods were not shipped according to agreement, and some of them were never shipped; and that because of the failure and neglect of the plaintiffs to ship and deliver the goods in accordance with the terms of purchase, and of the failure to ship some of them at all, the defendant was damaged in the loss of trade and profits. At the trial the issues raised by the cross-complaint were found substantially in favor of the defendant, and the court awarded him a certain sum in damages, offset the same against the amount due the plaintiffs, and rendered judgment in their favor for the balance. From this judgment the plaintiffs appealed. The court, among other things, found “That on the 5th day of August, 1897, the plaintiff acting through its agent, W. R. Butler, sold to the defendant goods and merchandise of the value of about $665.00;” also “that it was agreed by the plaintiff’s agent W. R. Butler, and the defendant prior to, and at the time said goods and merchandise were sold, that the same would be shipped from Omaha so as to reach Salt Lake City, Utah, for delivery to defendant within twelve days from said date of sale or on or before August 17, 1897; and that said agreement was considered by the parties before the sale, and was an express condition of the contract of sale.” It is contended, - dn behalf of the appellants, that the — 449 — evidence is insufficient to justify these findings of fact. We do not regard this contention as well founded. Without referring to the testimony in detail, an examination of it shows that there is evidence in the record which supports the findings, and although there is some conflict, still the proof is not such as would warrant this court in interfering, with the action of the trial court, on this point. It is further insisted, however, that W. R. Butler, who is characterized, in the findings, as the agent of the appellants, had no authority to make a sale, or to make a contract, respecting the time of delivery of the goods, which would bind his principals. Whatever authority may have been conferred upon him by his principals, the court found “ that at all times hereinafter mentioned W. it. Butler, was the duly authorized and acting agent and salesman for M. E. Smith & Co. for the State of Utah,” and the correctness of this finding does not appear to be challenged. Admitedly, therefore, Butler was the agent and representative, in this state, of the co-partnership, and there is nothing to show that the respondent, at any time before the sale had any notice of any limitations or restrictions upon the powers of the agent. Under these circumstances, the agent must be regarded as having all the powers incident to his employment, and the respondent had the right to deal with him upon that basis. If, therefore, the power to take an order, or make a contract for the sale of goods, is an incident to the agents employment, which must be so to give the agency any efficacy whatever, we see no good reason why the power to fix the time for the delivery of the goods should not likewise be an incident to such employment, and come within the scope of his authority. Certainly the time for the delivery of goods may — 450 — and, doubtless, often is of the utmost importance to the purcháser to prevent loss of custom, and consequent failure in business, through delay on the part of the seller. It is true that any order for goods, so taken by a salesman, may be and probably is only a conditional contract, not binding upon the principal until acceptance. "While this may be conceded, still the agent may make any contract, within the apparent scope of his authority, and when the principal accepts it he is bound by its terms. Therefore, as the appellants received the contract from their agent for the sale of the goods, without notice to the purchaser of a refusal to comply with some of its conditions, and acted upon it, by shipping a portion of the goods, they must be held to have accepted the contract as a whole, including the conditions, as to the time of delivery, and as to the delivery of all the goods, which were attached to the sale. So far as the respondent knew, Butler had apparently general authority to contract for a sale of the goods. It is true that the testimony of the appellants tends t.o show that there were private limitations imposed upon his powers, but these were never communicated to the respondent prior to the sale. In such case the agent must be regarded as a general agent, as to third parties who may deal with him in ignorance of any special or private instructions and limitations, and when his principal accepts the contract, he will be bound by all conditions attached thereto, if within the apparent scope of the agent’s powers. Mr. Justice Brewer, in Babcock v. Deford, 14 Kan. 313, where a question, similar to the one here considered, was before the court, said: “This agreement was made between the defendants and one Ross, who was the agent and commercial traveler of plaintiff; and it is objected that there is no proof that Ross had power to bind the — 451 — plaintiff by such an agreement. The defendants had no personal acquaintance, — no negotiations directly with the plaintiff. The entire trade was made between this agent and them. They had no knowledge of the extent or limitations of his authority. If the plaintiff accepted the contract of his agent, he must accept it as a whole, and cannot accept that which suits him, and reject the balance. The principal is bound by the representations of his agent, —bound by the contracts he makes within the apparent scope of his authority. Ross was the agent of plaintiff,— agent to make sales, — and the plaintiff is bound by the conditions he attaches to such sales. At least, he cannot enforce the sales, and reject the conditions.” In Keith v. Herschberg Optical Co., 48 Ark. 138, Mr. Justice Smith, said: “A third person has a right to assume, without notice to the contrary, that the traveling salesman of a wholesale house has an unqualified authority to act for the firm he represents, in all matters which come within the scope of that employment.” Dunlap’s Paley on Agency, 199-201; Mechem on Agency, Sec. 362; Daylight Burner Co. v. Odlin, 51 N. H. 56; Talmage v. Bierhouse, 103 Ind. 270; Murray v. Brooks, 41 Ia. 45; Marbray v. Kelly-Goodfellow Shoe Co., 73 Mo. App. 1; Bachman v. Charleston, 43 N. H. 125; Greer v. First Nat. Bank, 47 S. W. R. 1045. From the foregoing considerations, we are of the opinion that when the appellants received the order and acted upon it by shipping and delivering a portion of the goods, their action amounted to an acceptance of the contract, with the conditions attached by their agent. Thereafter, upon their failure to comply with all the conditions, the respondent became entitled to such damages as he sustained because of such failure. Nor, under the circumstances shown by the record in this case, do we think the claim for damages — 452 — was waived by the acceptance, from time to time, of such of the goods as the appellants delivered. The respondent could not, nor was he bound to anticipate that the appellants would not ship and deliver all the goods which he purchased, and consequently was not bound to refuse acceptance of such as were delivered. The acceptance of and payment for a portion of the goods was clearly advantageous to the appellants, and, 'when the final breach was committed by them, he had a right to sue for such damages as he actually sustained because of the failure of complete performance by the appellants. The other points presented have received due consideration, but we do not regard them of sufficient importance to require separate discussion. We find no reversible error in the record. Judgment affirmed, with costs. BaskiN, J., concurs.