Montague Manufacturing Co. v. Aycock-Holly Lumber Co. , 139 Va. 742 ( 1924 )

McLemore, J.,

after making the foregoing statement, delivered the following opinion of the court:

There are five assignments of error in the petition of plaintiff. Assignments Nos. 1 and 2 may be considered together, and are as follows:

“1. The action of the court in sustaining this action by the Aycock-Holly Lumber Company when it was neither a party nor privy to the contract sued on.

“2. The action of the court in assuming and telling the jury in effect that there was a contract between the Aycock-Holly Lumber Company and the Montague Manufacturing Company, and that the facts necessary to establish the contract had been proven in this ease.”

The trial court proceeded, upon the theory that Standard Company was the agent of defendant, and that the order given for the car of lumber was in legal effect an. order to Aycock-Holly Lumber Company over which transaction the agent had no control farther than to place the order and bind the parties. With this theory-of the case we are unable to agree.

The evidence is without material conflict, and establishes the following as the facts:

The plaintiff placed an order with Standard Company for one car of lumber at an agreed price; that the order was then and there accepted and the contract of sale consummated. The Standard Company, not having the stock on hand, attempted to cover its requirements by placing with defendant, a corporation doing the same business, not the order received and accepted from plaintiff, but an order for two cars.

The defendant, like the Standard Company, did not. have the stock on hand, and, therefore, failed to accept or acknowledge the order until it could find the ears of lumber desired by the Standard Company, which, in fact, were not located till two days later in Ashepo, S. C.

We do not think these facts constitute the relation of principal and agent. If they do, then plaintiff is liable to Aycock-Holly Lumber Company in damages upon a •contract made with Standard Company, and by them ■accepted unconditionally at a time when defendant was unknown to plaintiff. A fortiori, is this true when the evidence shows that plaintiff had been released from the obligation created by the giving and acceptance of the order, before it was known that defendant was going to accept, if at all, the order of Standard Company. That Standard Company did not know where they could purchase the ear of lumber to cover the sale they had made is abundantly shown by the correspondence and telegrams, and defendant, upon receipt of the enquiry, found itself similarly circumstanced. So we find them two days after receiving the order writing Standard Company, as follows:

“Jacksonville, Florida, March 10, 1920.

“Your order described below for the following material is now accepted on the terms and conditions printed on reverse hereof, which no salesman or representative has authority to change or waive.”

If the Standard Company was acting as agent for the car ordered by plaintiff, in what capacity was it acting as to the second car when it said in the telegram of March 8th: “Wire acceptance, if possible make it two cars?” There is no evidence that plaintiff ever bought but one car. It was not a shipment upon consignment, but appears to have been an unqualified purchase by Standard Company with terms mentioned and price fixed.

Even if the undisclosed principal theory could be-invoked, which we think the evidence does not justify, it would avail nothing, as the Standard Company had agreed to a cancellation of the contract before the principal had advised the plaintiff of the acceptance of the order. This order had, therefore, been accepted by Standard Company and later by it cancelled, before it was known by plaintiff that defendant was going to furnish the goods at all.

“The law indulges no presumption that an agency exists, but instead presumes that a person is acting for himself, and not as agent for another.” 2 Corpus Juris, 919-920.

“The rights of the other contracting party are not affected by the disclosure of a theretofore unknown principal.” 26 Corpus Juris, pages 840, 873-877.

To the same effect is Leterman v. Charlottesville L. Co., 110 Va. 769, 67 S. E. 281.

By the unqualified acceptance of the order, and later by the cancellation of same, the Standard Company, in unmistakable language, declared their position, to be that of principal in the transaction resulting in the sale to the plaintiff of the car of lumber, the subject matter of this suit. •

We are, therefore, of the opinion that no privity exists between Aycock-Holly Lumber Company and Montague Manufacturing Company, and having reached these conclusions we deem it unnecessary to discuss the other assignments of error. No action can be maintained by the defendant against plaintiff, and a judgment will be entered in this court in favor of the defendant in the court below, with its costs.

Reversed.