Pardridge v. Joel J. Bailey & Co. , 1886 Ill. App. LEXIS 144 ( 1886 )

Moran, J.

The agent of appellees had possession of the samples, and represented that he had authority to sell them. Appellants had no knowledge as to the authority of the agent, except from his representations that he had authority to sell at a certain price, and they purchased the goods at the price, and the agent delivered the goods to them, and they, in good faith and at his request, paid him for them. Where an agent is authorized to sell and is intrusted with the goods, he has an implied authority to receive payment. Story on Agency, Sec. 102; Capel v. Thornton, 3 Carr. & Payne, 352 ; Rice v. Graffman, 56 Mo. 434; Hoskins v. Johnson, 5 Sneed, 470; Putnam v. French, 53 Vt. 404.

The agent in this case had no authority to sell, but by abandoning the suit in trover commenced by them, and suing on the contract for the price at which the goods were sold, appellees have ratified the authority which the agent assumed to have when he made the sale.

" If the principal, whose goods have been sold without his authority, should sue the purchasers for the debt due therefor, that would amount to a ratification of the sale, for the suit would not upon any other ground be maintained in that form.” Story on Agency, Sec. 259 ; Cochran v. Chitwood, 59 Ill. 53.

A subsequent ratification is as good as a prior authority, and the consequence of bringing suit upon the contract must be to ratify the sale ah initio. The case stands thus then. The plaintiffs say : “ Our agent had the possession of our goods and had authority to sell and deliver to you at the price which you purchased them at, but he had no authority to receive the pay for them, and you, having paid him for them, must now pay us the contract price over again.” The defendants say: “We dealt with your agent, who had the goods and delivered them to us, and who, you now say (by bringing this suit), had authority to sell them to us; and we, having no notice that you forbade your agent to receive the price, supposed in good faith, from his having the goods and the right to sell them, that he was authorized to receive the price, and we in good faith paid it him, and we ought not to be compelled to pay again.”

The law is with the defendant. Had appellees maintained their suit in trover, thus repudiating a sale, the question to be determined would be different. The court below instructed the jury so as to ignore the rule that the agent’s authority to receive the pay would be implied from his possession of the goods and authority to sell them, and required the appellants to prove, in order to maintain their defense, that the agent had express authority to receive payment. This was error. It was also error to exclude the evidence offered by appellants to prove the universal usage and course of business for dealers in that line of goods, to pay traveling men for samples sold and delivered by them instead of paying the principal. The usages of a particular trade' may extend the scope of an agent’s authority when dealing with a person who has no knowledge of special or particular instructions. “ The rights of principals against third persons, arising from the acts and contracts of their agents, may be further illustrated by the consideration of payments made to or by the latter; and first, in relation to payments made to agents, such payments are good and obligatory upon the principal in all cases where the agent is authorized to receive payment, either by express authority or by that resulting from the usage of trade, or from the particular dealings between the parties.” Story on Agency, 429.

In all cases where such usages exist and an agency is to be exercised touching such matters, the natural presumption in the absence of all controverting proof is, that the agency is to be conducted in the manner and according to the practices which are allowed and justified by such usages. U. S. Life Co. v. Advance Co., 80 Ill. 549 ; Noble v. Nugent et ah, 89 Ill. 522 ; Putnam v. French, 53 Vt. 402.

The evidence offered tended to prove the usage claimed to exist, and whether in fact it would establish the existence of it was a question for the jury. For the errors indicated, the judgment will be reversed and the case remanded.

Reversed and remanded.