Boltz v. Huston , 23 Ill. App. 579 ( 1887 )

Per Curiam.

There is nothing whatever in the course of dealing between appellee and appellants through the agent, Miller, which would warrant appellee in concluding that said Miller had any authority further than to take orders for cigars and forward them to appellants for acceptance after the order was taken. Appellee had dealt exclusively with appellants in all their previous transactions.

We have searched this record in vain to find any evidence that would justify appellee in dealing with Miller on the assumption that he was anything more than a mere solicitor of orders for appellants.

If appellants had known of the pictured letter head it would not have furnished evidence which would justify such assumption, but there is no evidence that they were at all aware of Miller’s use of such letter head. There is then no ground whatever for implying authority or a holding out from such a source, A party who deals with an agent is bound at his peril to advise himself of the agent’s authority, and an authority to take orders does not include the right or authority to take and deal with the principal’s goods. Appellee had no right to deliver to said Miller any of the cigars, and doing so was equivalent to a conversion of them to his own use. We are of opinion that it was the duty of appellee to have advised appellants, within a reasonable time of the mistake in the order, if there was such mistake, and that notice to Miller was no notice to appellants under the facts in this case.

The notice, given in February, after he had taken 2,000 of the cigars himself and allowed Miller to take away the other 3,000, was not reasonable. He was, after having so dealt with the cigars, estopped to deny that he had accepted them, and he is, under the facts as shown in this record, justly and legally liable to appellants for the price at which the cigars were billed to him.

The judgment of the County Court must therefore he reversed and the case remanded.

Reversed and remanded..