Trainer v. Morison , 78 Me. 160 ( 1886 )

Haskell, J.

Assumpsit to recover the price for merchandize sold. Defense, payment to the plaintiff’s agent.

The plaintiff employed an agent to " sell ” 3ns goods " by sample.” The agent took an order from the defendants for oil, and directed the same forwarded to them, saying that it would arrive by next boat, and that "he came round once a month,” when the defendants engaged to pay him. The goods were delivered as agreed, accompanied by a bill, with the words, "all bills must be-paid by check to our order, or in current funds at onr office,” printed in red at the top. In two weeks after the delivery of the-oil, the agent called for, and received from the defendants pay for the same, and, gave to them a bill receipted in the plaintiff’s* name by himself, that bore the same notice in red letters that was printed upon the bill sent with the goods. The agent embezzled the collection. The case comes up on report.

The agent contracted a sale of the goods to be delivered, and-to be paid for to himself at his next call. The goods were delivered according to the contract, thereby giving the defendants, reason to believe, that the agent had authority to contract forth eir sale. An agent who has authority to contract for the sale-of chattels, has authority to collect pay for them (at the time, oí-as a part of the same transaction), in the absence of any prohibition known to the purchaser. Capel v. Thornton, 3 Car. & Payne, 352; Greely v. Bartlett, 1 Maine, 173; Goodenow v. Tyler, 7 Mass. 36; Story on Agency, § 102.

Knowledge of this prohibition by the purchaser may be inferred' from particular circumstances of the sale, or from customary usages of trade with which he is familiar, as well as by direct notice,, that the authority of the agent is limited in this particular.. Persons dealing with an agent have a right to presume that his. agency is general, and not limited, and notice of the limited: authority must be brought to their knowledge before they are to regard it. Methuen Co. v. Hayes, 33 Maine, 169. A travelling-agent, who assumes only to solicit orders for goods to bo sold at the option of his principal, as in McKindly v. Dunham, (Wis.) 42 Am. Hop. 740, may well be held unauthorized to make-collections. So a broker, not intrusted with the article sold, may not be authorized to receive the purchase money. Higgins v. Moore, 34 N. Y. 417; Barring v. Corrie, 2 B. & Ald. 137; Story on Agency, § 109.

In this case, the agent assumed to complete a contract of sale, .■specific in its terms, stipulating, that payment was to be made to -himself. After the goods had been delivered, he presented for payment a bill, made upon a genuine " bill head ” of his principal. He assumed general authority, and no facts are proved, that curtail, or limit it. The plaintiff seeks to charge the defendants with knowledge, that payment was required to be made, •according to the terms of the notice in red letters upon the bill •sent with the goods. The defendants did not see the notice, nor, taking into consideration the care ordinarily exercised by prudent •men, are they at fault for not observing it.

It is not so prominent upon the bill as to become a distinctive ■feature of it; one that would be likely to attract attention in the •hurry of business, and that ought to have been seen by the ■defendants. It wouldhave been an easy matter for the plaintiff to .have inclosed the bill in a letter of advice, calling the attention •of the defendants to the fact, that he was unwilling to intrust •collections to his agent. Kinsman v. Kershaw, 119 Mass. 140; Putman and Co. v. French et al. 53 Vt. 402; Wass v. M. M. Ins. Co. 61. Maine, 537.

Plaintiff nonsuit.

Peters, C. J., Daneorth, Virgin, Emery and Poster, JJ., •concurred.