Daylight Burner Co. v. Odlin , 51 N.H. 56 ( 1871 )

Bellows, C. J.

From the uncontradicted testimony of the plaintiff and the finding of the jury, it may be assumed that Moore was clothed by the plaintiff with an apparent authority, like that of a factor, to sell all the goods of the plaintiff he could sell within his bu'siness circuit, on a commission of ten per cent.

. As incident to that general authority, he had power to fix the terms of sale, including the time, place, and mode of delivery, and the price of the goods, and the time and mode of payment, and to receive payment of the price, subject of course to be controlled by proof of the mercantile usage in such trade or business.

There is some conflict in the adjudged cases upon the question of the authority of a factor to sell on credit, but we think the weight of modern authority is in favor of the position that he may sell on credit, unless a contrary usage is shown. Goodenow v. Tyler, 7 Mass. 36; Hapgood v. Batcheller, 4 Met. 576; Greely v. Bartlett, 1 Greenl. 178; Van Alen v. Vanderpool, 6 Johns. 70; Robertson v. Livingston, 5 Cow. 473; Leland v. Douglass, 1 Wend. 490;—and see 1 Am. Lead. Cases, 4th ed., 662, note, where it is said that it is universally established as the law-merchant that a factor may. sell on credit. So is Laussatt v. Lippincott, 6 S. & R. 386, and May v. Mitchell, 5 Humph. 365, and Story on Agency, sec. 209.

The same views are recognized in Scott v. Surman, Willes 406; Russell v. Hankey, 6 T. R. 12; Haughton v. Mathews, 3 B. & P. 489, per Chambre, J.; 3 Selw. N. P. 719.

In the case before us, Moore stands much on the same footing as a factor. The most marked distinction is, that he is a travelling merchant, and did not apparently have his principal’s goods with him; but this, we think, caiinot affect the rule.

The reason of that rule in the case of factors is, that it is found, by experience and repeated proofs in courts of justice, that it is ordinarily the usage of factors to sell on credit; and the same reason will apply in this case.

We have a case, then, where the agent was apparently clothed with the authority to sell the plaintiff’s goods, without limitation as to the quantity, and on commission, for cash or on credit as he might think proper; and this being so, Moore must be regarded, in respect to third persons, as the plaintiff’s general agent, whose authority would not be limited by instructions not brought to the notice of such third persons. Backman v. Charlestown, 42 N. H. 125, and cases cited.

As Moore, then, in respect to third persons, had the power to sell on credit, the authority to control the delivery of the goods so sold and sent to his order, for the purpose of making it conform to the contract of sale, would necessarily come within the scope of his agency: and we think his order to the defendant would justify a delivery of the goods without payment, unless he had notice of the agent’s want of authority. As to him the agent's apparent authority was real authority.

The marking of the package by another agent of the plaintiff, to the effect that cash was required on delivery, was not in law notice of such want of authority, although it might be sufficient to put the defendant upon inquiry. That, however, was properly left to the jury, and they have found it not to be sufficient for that purpose. The marking, of the package in that way does not necessarily imply that the agent had no authority to sell on credit, but it might indicate merely that the person so marking it supposed the sale to be for cash. And it might well be considered to come within the scope of Moore’s agency to make the delivery conform to the contract of sale.

As the defendant, therefore, is found to have had no notice of any want of authority in Moore, and was not put upon inquiry, there must be

Judgment, on the verdict.