Bay State Milling Co. v. Saginaw Baking Co. , 225 Mich. 557 ( 1923 )

In October, 1920, defendant operated a wholesale and retail bakery at the city of Saginaw, employing 11 men and using from 5 to 10 barrels of flour a day. Plaintiff's salesman obtained an order for 500 barrels of flour to be shipped from Winona, Minnesota, to defendant at Saginaw, at $12.10 per barrel, "delivery to carrier at shipping point, with freight (basis rate in effect date of sale) allowed to Saginaw, Mich." This order was signed "E. Jakubowsky, buyer," and was made subject to confirmation by plaintiff. Plaintiff refused to confirm at $12.10 and wanted $12.20 per barrel. Thereupon plaintiff's salesman visited defendant's bakery and claims that Mr. Jakubowsky authorized him to change the figures $12.10 to $12.20 and he did so, and sent the corrected order in. A few days later plaintiff notified defendant of confirmation of the order at $12.20 per barrel. Mr. Jakubowsky denied authorizing any change in the order and claims he cancelled the order by letter about a month after receiving notice of confirmation and excuses the delay because of his failure to notice earlier that the confirmation was at $12.20 per barrel. Plaintiff shipped the flour to Saginaw and, upon refusal of defendant to take it, sold it in the market and, as flour took a drop after the order and was worth but $9.25 in the market when sold therein, plaintiff brought this suit to recover the difference between the sale price to defendant and the market price at which it was later sold and had verdict and judgment for $1,396.65. Defendant has brought the case here by writ of error. While 50 errors are assigned they fall within groups and will be so considered.

Was the court in error in permitting parol evidence to be given of the change in price after the order had been signed? Defendant relies upon the statute of frauds and insists the order as it was when signed constituted the only admissible evidence. If the order was changed after the buyer had signed and by consent of the buyer, it could be shown by parol without offending the statute of frauds. Montana Flour Mills Co. v.Lawrence, 224 Mich. 21.

Defendant wanted to show limited authority in its manager to make purchases and was not permitted to do so. Was the transaction of such character as to be beyond the ordinary duties and powers of a manager and buyer and, therefore, to put the plaintiff upon inquiry as to the authority of the agent it was dealing with? If flour had gone up in price the order would have been a good buy and of daily satisfaction to defendant for a period of from 50 to 100 days, that being the time it would have supplied defendant's needs. In placing Jakubowsky as manager and buyer defendant held him out as one clothed with authority to at least purchase supplies to keep its bakery in operation. It cannot be said that the purchase of 500 barrels of flour for future delivery so clearly transcended the manager's authority as to send the salesman over his head to the board of directors. Business cannot be carried on if a manager's authority to make purchases of material needed to carry on a business for 100 days must be questioned by any one dealing with him and searched out or an order taken at the peril of the seller. In the absence of notice to the contrary plaintiff's salesman had a right to assume that defendant's manager and buyer was authorized to purchase such a needed commodity in its business as flour and in quantity sufficient to carry on the business from 50 to 100 days. Under the circumstances disclosed there was no error in refusing evidence to show less power in the manager than he ostensibly possessed. Inglish v. Ayer,79 Mich. 516; Grand Rapids Electric Co. v. Walsh Manfg. Co.,142 Mich. 4. When the corporation placed Jakubowsky as manager in charge of its business with authority to buy flour, it could not, as to this purchase, be heard to say that its manager could only buy flour in small quantities. If the quantity ordered was not so large as to reasonably awaken suspicion of the manager's authority in one of ordinary prudence under like circumstances then defendant must abide the order as given. In so holding we do not consider the fact that the manager and buyer was at the time treasurer of the company and held one-quarter of its capital stock, and that Mr. Nagel, vice-president and also the holder of one-quarter of the stock, at the time approved the giving of the order. We say this to avoid any misapprehension as to the rule of agency applied.

It is claimed the court erred in permitting witnesses Jakubowsky and Nagel to be asked how much stock they held in defendant company. The financial interest of a witness in a case may be inquired into.

The order having been signed "E. Jakubowsky, buyer," the point is made that such a signing does not comply with the statute of frauds. The statute (3 Comp. Laws 1915, § 11835) requires the order to be "signed by the party to be charged, or his agent in that behalf" to make it enforceable. The order shows on its face that the Saginaw Baking Company was the purchaser of the flour and Jakubowsky, as its agent, signed in its behalf. Under this statute the authority of the agent to sign in behalf of his principal does not have to be in writing and may be established by the fact he was manager of the business, in active charge thereof, making needed purchases of supplies and exercising apparent authority in the premises. Under the evidence the point is without merit. See Heffron v.Armsby, 61 Mich. 505.

Plaintiff's sales agent, who took the order, on recross-examination, was asked:

"Q. Since the time you gave your testimony here on the stand you have been arrested?

"A. Yes.

"Q. You have been arrested for forging a chattel mortgage?"

The court sustained an objection to the last question, stating:

"If he has been arrested and convicted of crime, it is perfectly proper to show it."

Was reversible error committed in sustaining the objection? If the purpose was to affect the credibility of the witness it rested in the discretion of the court to admit or exclude it, and if the purpose was, as now urged, to establish fraud in this transaction by showing fraud in a similar matter, then it was not admissible. People v. LaLonde, 197 Mich. 76,79. Cook v. Perry, 43 Mich. 623, and People v.Seaman, 107 Mich. 348, 357 (61 Am. St. Rep. 326), cited by counsel, carry no language supporting any rule to the contrary. See, also, Morain, v. Tesch, 214 Mich. 699.

The assignments of error upon the charge of the court have been examined and have no merit.

Defendant claims the contract itself provided the remedy for a breach thereof by defendant and the measure of damages. This is based upon the following provision:

"If the buyer shall refuse to accept any shipments as specified hereunder or fail to perform any of the other terms of this agreement, then the seller may cancel this contract and the buyer shall pay to the seller the entry charge above provided (twenty-five cents per barrel) plus or minus the then market price difference. The seller may also pursue such further remedies as the law may provide."

This provision on its face did not purport to fix the sole remedy and the measure of damages, but left it optional with the plaintiff to pursue such remedy and have such damages or pursue such further remedy as the law provides. Plaintiff did not have to accept defendant's attempted cancellation of November 8th.

We find no reversible error and the judgment is affirmed, with costs to plaintiff.

FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ., concurred.