Keith v. Herschberg Optical Co. , 48 Ark. 138 ( 1886 )

Smith, J.

This action was begun before a justice of the peace to recover of Keith $51.75, on open account, for a bill of goods sold him by the plaintiff’s traveling agent.

The plaintiff had judgment, and the defendant appealed. In the circuit court the defendant filed a formal answer, in which he alleged that he agreed to purchase the goods (eye-glasses), but that, as a part of the contract of sale, plaintiff’s agent, who made the same, agreed to give defendant the exclusive right of selling the goods in Boone-ville ; that he stated he had not sold to any one else, and agreed with defendant that he would not sell to any one else in Booneville; that defendant refused to purchase any of his goods unless this agreement was made; that plaintiff’s agent immediately sold the same class of goods to two other firms in Booneville, making the same contract with each of them; that on learning this he refused to take the goods, and at once notified plaintiff', and that the goods were subject to its order.

There was a trial, with verdict and judgment for plaintiff. And the errors assigned in the motion for a new trial related to the admission of certain testimony and the charge of the court.

1. Bill of SlOBPtions: Directions to clerk to copy, etc.

It is claimed, however, that the merits of the appeal are not properly before us for consideration, because the bill of exceptions does not contain the depositions of certain witnesses, and the agreed statement as to the testimony of an absent witness, which were used upon the trial, but a mere direction to the clerk to insert the same. It was a skeleton bill; and, as allowed by the judge, ran thus:

“ The plaintiff, to maintain the issue on its part, read in evidence the deposititions of H. Herschberg and of A. Herschberg, taken in St. Louis, on the 24th day of February, 1885, before Enrique Parmer, notary public, which were in words and figures as follows : [Here copy the deposition of witnesses.]

“ The defendant, to maintain the issue on his part, introduced m evidence the agreed statement of F. Moore, which is in words and figures as follows, to wit: [Here copy Moore’s statement.] ”

These writings are sufficiently identified, within the rule of St. L., I. M. & S. Ry. v. Godby, 45 Ark., 485; and Lesser v. Banks, 46 Ark., 482, so as to leave no doubt that the depositions and statement found in the record are those that are referred to in the bill of exceptions.

The president of the plaintiff company, and also the agent who sold the goods, testified over the objections of defendant that he had no authority to make any such contract, and the latter also says he could not have made such contract, as it was contrary to orders, but does not positively deny making the agreement.

The defendant testifies to the same effect as set out in his answer, and that he never sold or offered to sell any of the goods. That it was in consideration of the agreement, that he was to have the exclusive right to handle these goods, that he gave the order.

He also'proved by two witnesses that plaintiff’s agent, about the same time, sold the same class of goods to each of said witnesses, and agreed with each of them that no other firm in Booneville should handle the goods.

The jury were told, in substance, to disregard all testimony as to an agreement not to sell to any other parties, unless it was shown that the agent was a general agent, or had authority from plaintiff to make such contract. And the court rejected prayers to the effect, that if plaintiff’s agent agreed not to sell the same class of goods to any person in Booneville, and this was an inducement moving defendant to make the purchase, and that plaintiff’s agent violated this agreement and sold to other parties, this was a fraud on defendant, entitling him to rescind the contract. Also, that a principal claiming the benefit of a contract made by his agent, is bound by the terms of such contract, unless the other had notice of the want of authority in the agent.

2. asmtsandsPoTraveling

A special agency exists when there is a delegation of authority.to do a single act. A general agency is where there is a delegation to do all acts connected with a particular business or employment. Now, A. Herschberg, so far as the defendant knew, had a general authority to sell the plaintiff’s goods ; his agency not being limited to any particular mode of doing it. In reality, as the proof discloses, his authority, although it extended to do acts generally in the course of ,his employment, was yet qualified and restrained by instructions of a special nature. But these instructions had never been communicated to the defendant. The rule in such a case is, the agent is deemed, as to persons dealing with him in ignorance of such special ■limitations, conditions and instructions, to be a general agent, although, as between himself and his principal, he may be only a special agent. In other words, a general agency does not import an unqualified authority, but that which is derived from a multitude of instances, or in the general course of an employment or business. And the principal will be bound by the acts of his agent, within the scope of the general authority conferred on him, although he violates by those acts his private directions, which are given to him by his principal, limiting, qualifying, suspending or prohibiting the exercise of such authority under particular circumstances. A third person has aright 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 mattere which come within the scope of that employment. Smith’s Mercantile Law, 3d Ed., 173; Story on Agency, 8th Ed., secs, 17, 4, 19, 126-7; Paley’s Agency, 4th Am. Ed., (*199 et seq. and notes); 2 Kent’s Com., 12th Ed., *620; Brooks v. Perry, 23 Ark., 32; Leake v. Sutherland, 25 ib., 219; Jacobson v. Poindexter, 42 Ark., 97; Meyer v. Stone, 46 ib., 210; Butler v. Maples, 9 Wallace, 766; Insurance Co. v. Wilkinson, 13 ib., 222; Insurance Co. v. McCain, 96 U. S., 84; Brant v. Moore, 26 Me., 81.

Thus, in Minter v. Pacific Railroad, 41 Mo., 503, the baggage master was, by the printed rules of a railroad company, forbidden to take articles of merchandise on passenger trains. He, nevertheless took a carpet, the passenger not knowing the rule, and the company was held liable for its loss. The true question for the jury, then, was not whether A. Herschberg had real authority, but whether he had apparent authority to make the contract he did make. It follows that the charge of the court on this subject was wrong.

A contract which restrains the business or industrial freedom of a person within reasonable limits, is not against public policy. Thus, a covenant to sell patent teeth to no other dentist in a certain town of Vermont, was held valid in Clark v. Crosby, 37 Vt., 188. And so a covenant not to sell any furniture in his line to any in the town of' O, but to B. (Roller v. Ott., 14 Kans., 609.) See Greenhood on Public Policy, Bule DLXV.

In 19 American Law Beview, 962, it is stated that the Supreme Court of Texas, in Watkins v. Morley, had decided, in September, 1885, that a contract by a drummer not to sell a certain class of goods to any other merchant in a town except A, is within the apparent scope of his authority, and is binding on his principal, but we have not seen the full report of that case.

“The general rule is, as to all contracts, including sales, that the agent is authorized to do whatever is usual to carry out the object of his agency, and it is a question for the jury to determine what is usual. If, in the sale of the goods confided to' him, it is usual in the market to give a warranty, the agent may give that warranty in order to effect a sale.” Benjamin on Sales, 4th Ed. Am., sec. 624, and cases cited; LeRoy v. Beard, 8 How., 451; Schuchardt v. Allen, 1 Wallace, 359; Talmage v. Bienhouse, 103 Ind., 270; Smilie v. Hobbs., Sup. Ct. of N. H, New Eng. Rep., 345.

The rejected prayers, set out above, should also have been given. When an agent for the sale of property is acting upon the line of business committed to him, his principal is chargeable with the false representations made by him. (Strayhorn v. Giles, 22 Ark., 517; Morton v. Scull, 23 ib., 289; Matlock v. Reppy, 47 ib., 148.) The plaintiff cannot recover the price of the goods without performing the condition upon which the sale was made.

Reversed and a new trial ordered.