Walter A. Wood & Co. v. Finson , 89 Me. 459 ( 1897 )

Haskell, J.

Assumpsit for the sale of burning oil, to be delivered free on board vessel in Boston. Defense, that the contract of sale called for its insurance by the vendor, and that, from failure to do so, the oil being lost at sea, tbe vendee lost its value; and also that, thereafterwards, the vendor agreed to replace tbe oil and did so by tbe delivery of other oil now sued for. Of course, tbe agreement to replace tbe oil need not avail, if tbe failure to insure does so.

Plaintiffs were merchants in Boston. Defendants, traders in Bucksport. One Carlow was tbe traveling salesman of tbe plaintiffs prior to April, 1894, and bad repeatedly sold tbe defendants burning oil. One Emery succeeded Carlow and sold tbe oil now sued for. Defendants testify that they bad instructed Carlow to always insure burning oil shipped to them by vessel. Emery sold tbe oil in suit, but did not insure it and it was lost on tbe voyage. Tbe. presiding justice instructed tbe jury that Carlow bad no authority, as salesman, to contract for insurance of future sales not made by him.

Carlow bad authority to sell goods, to fix tbe price and tbe terms of payment, when and where tbe goods should be delivered and by what carrier they should be sent. These powers were all incident to bis authority to sell goods. They are all to be exercised by him for bis principals, not for himself. Why, then, should be not bind them as to conditions of a continuous trade with their customer so long as they continued it? Defendants testify that Carlow promised to notify plaintiffs to insure tbe oil purchased by defendant, and that with tbe exception of once or twice plaintiffs did so and they paid tbe bill. Had Carlow remained in plaintiffs’ employ, tbe condition of sale requiring insurance would have bound tbe plaintiffs. Carlow left their employ, but bis customers remained, and plaintiffs continued to solicit their trade. Had they not a right to suppose that tbe same conditions of dealing obtained? They were not notified of any change. A new representative of tbe bouse visited them, — that was all. Their continued custom was sought and obtained. Why not under the existing terms? No good reason is plain. It is fair to assume that tbe old arrangement as to insurance was to continue, and we think it did. “ Persons dealing with an agent have a right to presume that bis agency is general and not limited, and notice of the limited authority must be brought to their knowledge before they are to regard it.” Trainer v. Morison, 78 Maine, 163; Methuen Co. v. Mayes, 33 Maine, 169.

The oil in the first item in the account sued was 'lost in transit, and the second' item is a duplicate of it, furnished, as the defendants testify, on condition that no charge should be made for the goods lost. The presiding justice instructed the jury that, Emery, the plaintiffs’ salesman, had no authority to sell the goods upon such terms. The goods, according to the defendant’s testimony, were either sold upon such terms or not at all, and the case of Billings v. Mason, 80 Maine, 496, is directly in point. There, a salesman sold goods upon stipulation that certain like goods of the vendee should be taken in payment. To do this, he had no authority from his principals, but the court held the agreement valid. It says, “that he not only assumed the authority so to do, but did actually make such a contract.” It further says the vendor “ cannot hold him [the vendee] upon a contract he did not make, or repudiate the contract in part and hold the remainder valid.” Brigham v. Palmer, 3 Allen, 450. “Nor can he be holden upon an implied contract, for that is excluded by the express.” So here, the salesman seems to have sold the oil' upon the surrender of defendant’s claim for breach of the contract to insure. That sale was express. If that contract be invalid, then the law implies none, and the remedy is not assumpsit for goods sold.

These defenses should have been submitted to the jury,, and it was error to direct a verdict for plaintiffs.

Exceptions sustained.