Clough v. Whitcomb , 105 Mass. 482 ( 1870 )

Wells, J.

It appears by these exceptions that the goods in question were delivered to the defendant by the plaintiff, directly; and not through Clark, the alleged agent. They were so delivered upon written orders, signed by the defendant, addressed to the plaintiff, and giving the description, quantity and prices of the goods desired. These orders were solicited and forwarded by Clark, who was the plaintiff’s agent for that purpose, and was to have a commission upon sales so made. Whether he was authorized to make contracts of sale and to receive payments, or to make agreements as to the mode of payment, was in dispute upon the conflicting testimony of the parties. Unless he had such authority, or was held out by the plaintiff as having such authority his receipt of, or agreement to receive, in payment, other goods, by way of barter, would not bind the plaintiff, and he may recover- for the goods in this action. Upon the face of the orders upon which the goods were delivered, the price is payable in money to the plaintiff.

The first instruction given to the jury seems to us exceptionable, because not properly adapted to the facts of the case. There was no evidence that the goods were delivered to the defendant by Clark upon a contract for the same made by himself, as agent of the plaintiff, or otherwise. It was in dispute whether the contract of sale was made by Clark, as agent, or by the plaintiff directly ; but the delivery, as the case is reported, was not made by Clark; and it was made by the plaintiff, not upon any verbal contract with Clark, but upon the defendant’s written order, addressed to the plaintiff himself. The case therefore differs essentially from Brigham v. Palmer, 3 Allen, 450. The facts indicate a contract of purchase and sale with the plaintiff directly, and not with the agent. Finch v. Mansfield, 97 Mass. 89.

The second instruction is erroneous in itself. A.commission, allowed to one who solicits orders, upon sales effected through such orders, does not constitute him or prove him to be an agent with authority to make absolute contracts of sale ; much less to receive payments, and make agreements to receive payments in other goods by way of barter. As we understand the instruction, it was that an agreement to give Clark a commission on goods sold through his solicitation made or-proved him to be an agent to sell said goods.This instruction, taken with the previous one, rendered a verdict for the defendant almost inevitable. For these reasons, a new trial should be had.

There was evidence tending to show that, either by previous authority or by subsequent acquiescence, the plaintiff sanctioned the mode of dealing adopted by Clark. But it does not appear that the verdict was rendered on that ground, and no question is now open before us in relation to it. Exceptions sustained.