authority is fully applicable with regard to the power of an agent to sell property of his principal. On the other hand, the correlative rule that an agent may bind his principal if he does not exceed the power with which he is actually or ostensibly vested, notwithstanding he has secret instructions from his principal to the contrary, is equally applicable to sales by agents. And the general rule is, as to all contracts, including sales, that the agent is authorized to do whatever is usual or necessary to carry out the object of his agency. Agents sent out by manufacturers to solicit orders are held out to the trade as having authority to act according to the general usage, practice, and course of business conducted by such manufacturers through such agents, and the question of what is usual or necessary to be done by such agents is ordinarily for the jury. But when one authorizes another to sell goods, he is presumed to authorize him to sell only in the usual manner in which goods or things of that sort are sold. The usage of the business in which he is employed furnishes the rule by which his authority is measured. In this respect the extent of the implied authority of a general selling agent is the same as that of other general agents, and it is an elementary principle that an agent employed generally to do any act is authorized to do it only in the usual way of business. A general selling agent is not by virtue of his commission permitted to depart from the usual manner of effecting what he is employed to effect.8 673. Authority in Particular Instances.-A general clerk in a store has implied authority only to sell in the ordinary course of trade, and has no ostensible authority to turn out goods in payment or security for his principal's indebtedness incurred in the business. In case of 3. Rietz v. Martin, 12 Ind. 306, 74 Am. Dec. 215. v. Tuckett, 15 East. 400, 13 Rev. Rep. 509, 2 Eng. Rul. Cas. 357. 5. Bibb v. Allen, 149 U. S. 481, 13 S. Ct. 950, 37 U. S. (L. ed.) 819; Kircher v. Conrad, 9 Mont. 191, 23 Pac. 74, 18 A. S. R. 731, 7 L.R.A. 471; Pickert v. Marston, 68 Wis. 465, 32 N. W. 550, 60 Am. Rep. 876. 6. Austrian v. Springer, 94 Mich. 343, 54 N. W. 50, 34 A. S. R. 350. 4. Herring v. Skaggs, 62 Ala. 180, 34 Am. Rep. 4; Wright v. Solomon, 19 Cal. 64, 79 Am. Dec. 196; Parsons v. Webb, 8 Greenl. (Me.) 38, 22 Am. Dec. 220; Lobdell v. Baker, 1 Metc. (Mass.) 193, 35 Am. Dec. 358; Austrian & Co. v. Springer, 94 Mich. 343, 54 N. W. 50, 34 A. S. R. 350; Kircher v. Conrad, 9 Mont. 191, 23 Pac. 74, 18 7. Upton v. Suffolk County Mills, A. S. R. 731, 7 L.R.A. 471; Henning- 11 Cush. (Mass.) 586, 59 Am. Dec. sen v. Tonopah, etc., R. Co., 33 Nev. 163; Kircher v. Conrad, 9 Mont. 191, 208, 111 Pac. 36, 119 Pac. 744, Ann. 23 Pac. 74, 18 A. S. R. 731, 7 L.R.A. Cas. 1913D 1008; Smith v. Clews, 105 471; Argersinger v. MacNaughton, N. Y. 283, 11 N. E. 632, 59 Am. Rep. 114 N. Y. 535, 21 N. E. 1022, 11 A. S. 502; Carmichael v. Buck, 10 Rich. L. R. 687; Pickert v. Marston, 68 Wis. (S. C.) 332, 70 Am. Dec. 226; Gal- 465, 32 N. W. 550, 60 Am. Rep 876. braith v. Weber, 58 Wash. 132, 107 8. Upton v. Suffolk County Mills, Pac. 1050, 28 L.R.A. (N.S.) 341; 11 Cush. (Mass.) 586, 59 Am. Dec. Pickert v. Marston, 68 Wis. 465, 32 N. 163. W. 550, 60 Am. Rep. 876; Whitehead 9. Beals v. Allen, 18 Johns. (N. Y.) a traveling salesman or drummer, it is the general rule that he has no ostensible or implied authority to make a binding contract of sale, without the approval or acceptance of his principal. The extent of his authority is merely to solicit orders and transmit the same to his principal for acceptance; 10 but of course he may be clothed with ostensible authority to make binding contracts of sale and where the principal by a previous course of dealing has held out the traveling salesman as having authority to make contracts of sale and to fix prices and terms, the principal will be bound by the acts of the salesman.11 The collateral contract of a traveling salesman not to sell a certain class of goods to any other merchant in a town except the purchaser has been held to be within the apparent scope of his authority,12 and the authority of one selling to jobbers to give a jobber the exclusive right to sell the line of goods purchased from him in a particular territory may be shown by the existence of a usage or custom for such traveling salesman to make such contracts.18 Authority to sell does not include a power to exchange or barter,14 or to trade the property for other property and boot money,15 or to give an option to purchase.16 Authority to sell a yacht or vessel by implication includes authority to sell therewith the appurtenances as well as the yacht or vessel itself, but this does not include a naphtha launch used as the yacht's tender, which cannot be carried by the yacht and does not accompany it on its trips and voyages, as it cannot be considered an appurtenance.17 In case of business partnerships, one partner has general power to make sales of the partnership property,18 and it has 363, 9 Am. Dec. 221; Peshine v. Shepperson, 17 Grat. (Va.) 472, 94 Am. Dec. 468. 10. Bauman v. McManus, 75 Kan. 106, 85 Pac. 15, 10 L.R.A.(N.S.) 1138; L. A. Becker Co. v. Clardy, 96 Miss. 301, 51 So. 211, Ann. Cas. 1912B 355; McKindly v. Dunham, 55 Wis. 515, 13 N. W. 485, 42 Am. Rep. 740. Note: Ann. Cas. 1912B 356. 11. Note: Ann. Cas. 1912B 356. 12. Note: 10 A. S. R. 587. 13. Kaufman v. Farley Mfg. Co., 78 Ia. 679, 43 N. W. 612, 16 A. S. R. 462. 14. Woodward v. Jewell, 140 U. S. 247, 11 S. Ct. 784, 35 U. S. (L. ed.) 478; Kearns v. Nickse, 80 Conn. 23, 66 Atl. 779, 10 Ann. Cas. 420, 10 L.R.A. (N.S.) 1118; Trudo v. Anderson, 10 Mich. 357, 81 Am. Dec. 795; Cleveland v. State Bank, 16 Ohio St. 236, 88 Am. Dec. 445; Strong v. Adams, 30 Vt. 221, 73 Am. Dec. 305. Notes: 81 Am. Dec. 801; 47 Am. Rep. 519; 10 L.R.A. (N.S.) 1118; 10 Ann. Cas. 421. 15. Kearns v. Nickse, 80 Conn. 23, 66 Atl. 779, 10 Ann. Cas. 421, 10 L.R.A. (N.S.) 1118. 16. Swift v. Erwin, 104 Ark. 459, 148 S. W. 267, Ann. Cas. 1914C 363 and note; Trogden v. Williams, 144 N. C. 192, 56 S. E. 865, 10 L.R.A. (N.S.) 867 and note; Tibbs v. Zirkee, 55 W. Va. 49, 46 S. E. 701, 104 A. S.. R. 977, 2 Ann. Cas. 421 and note. 17. Forrest v. Vanderbilt, 107 Fed. 734, 46 C. C. A. 611, 52 L.R.A. 473. See SHIPPING as to what are considered appurtenances to a vessel. 18. See PARTNERSHIP, vol. 20, p. 882 et seq., as to the power of a partner to bind the firm generally, and p. 908 et seq. as to the sale of the personalty of the firm. been held that one partner has power to sell all the goods of the partnership at a single sale, though the object of the partnership was to sell by retail.19 674. Terms of Sale Generally.-If the agent's authority is limited to a sale for a particular price, he has no authority to sell for a less price.20 But it has been held that where the agent has exclusive possession of the property of his principal, with authority and for the express purpose of selling it to any purchaser he may find, a purchaser from such agent has the right to rely on the agent having power to agree on the purchase price.1 As an incident to a general authority to sell, it has been held that the agent has ostensible authority 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.2 4 675. Sales on Credit.-If an agent's authority to sell on credit is expressly restricted, he cannot ordinarily bind his principal in violation of such restriction. Authority to sell ordinarily implies that the sale shall be for cash and not on credit, and as stocks and goods sent to auction are not usually sold on credit, a stockbroker or auctioneer has no authority so to sell them unless he has his principal's express direction or consent. A general selling agent has authority to sell on credit when such is the usage of the business in which he is engaged. If in violation of his instructions to sell for cash only, the agent sells on credit he becomes personally liable to his principal for the price, and an alleged.custom or usage to the effect that a sale on a short credit is to be deemed a cash sale does not affect the right of the principal against the agent violating his instruction to sell for cash only.8 676. Pledge or Sale in Payment of Agent's Indebtedness.— Authority conferred on an agent to sell, though accompanied with the possession of the property to be sold, confers no actual or ostensible Dyer v. Duffy, 39 W. Va. 148, 19 S. E. 540, 24 L.R.A. 339. Note: 47 Am. Rep. 519. 5. Upton v. Suffolk County Mills, 11 Cush. (Mass.) 586, 59 Am. Dec. 163. 6. Upton v. Suffolk County Mills, 11 Cush. (Mass.) 586, 59 Am. Dec. 163; Daylight Burner Co. v. Odlin, 51 N. H. 56, 12 Am. Rep. 45. 7. Bliss v. Arnold, 8 Vt. 252, 30 Am. Dec. 467. 8. Bliss v. Arnold, 8 Vt. 252, 30 Am. Dec. 467. authority to apply or transfer the property in payment of his own debt, and one who so takes the property, though in good faith, cannot ordinarily hold the same against the principal. This is true as regards an agent having general authority to carry on a mercantile business for his principal;. he can only appropriate the goods to the use and profit of the principal, and in this regard persons dealing with a general agent are bound to measure the scope of his authority, as they are in dealing with a special agent.10 Likewise authority to pledge is not within the actual or ostensible authority of an agent authorized to sell,11 and while the delivery of goods to a merchant engaged in the sale of similar articles may confer on him ostensible authority to sell, authority to pledge cannot be inferred from such possession, for to pledge is a special transaction, outside of the usual course of business, and consequently outside of the protection extended to ordinary transactions of commerce.12 677. Possession as Evidence of Authority to Sell Generally.-The mere possession of personal property by an agent or servant does not confer on him ostensible authority to sell, and a sale under such circumstances does not confer title as against the principal even though the buyer is a bona fide purchaser.13 So a commercial traveler, authorized in fact only to exhibit samples and solicit, receive and forward orders, has no implied authority to sell his samples and take pay for them.14 An agent employed merely to drive stock from one place to another has no ostensible or implied power to sell the stock in case 9. Warner v. Martin, 11 How. 209, tucci, 72 Conn. 504, 45 Atl. 99, 77 A. 13 U. S. (L. ed.) 667; Baldwin v. Tucker, 112 Ky. 282, 65 S. W. 841, 57 L.R.A. 451; Frantz v. Fink, 125 La. 1013, 52 So. 131, 28 L.R.A. (N.S.) 539; Miller v. Schneider, 19 La. Ann. 300, 92 Am. Dec. 535; Parsons v. Webb, 8 Greenl. (Me.) 38, 22 Am. Dec. 220; Stewart v. Woodward, 50 Vt. 78, 28 Am. Rep. 488. S. R. 327, 47 L.R.A. 601; Gilman, etc., Notes: 47 Am. Rep. 519; 14 114 N. Y. 190, 21 N. E. 160, 11 A. S. L.R.A. 234. 10. Stewart v. Woodward, 50 Vt. 78, 28 Am. Rep. 488. 11. Warner v. Martin, 11 How, 209, 13 U. S. (L. ed.) 667; Wright v. Solomon, 19 Cal. 64, 79 Am. Dec. 196; Miller v. Schneider, 19 La. Ann. 300, 92 Am. Dec. 535; McCreary v. Gaines, 55 Tex. 485, 40 Am. Rep. 818. 12. Wright v. Solomon, 19 Cal. 64, 79 Am. Dec. 196. 13. Calhoun v. Thompson, 56 Ala. 166, 28 Am. Rep. 754; Romeo v. Mar R. 627, 4 L.R.A. 392; Knox v. Eden Notes: 3 A. S. R. 196, 201; 25 As to the rights of a bona fide pur- 14. Kohn v. Washer, 64 Tex. 131, 53 Am. Rep. 745. Note: 18 L.R.A. 667. it becomes footsore.15 The fact that a The fact that a principal writes to his agent that unless he returns property in his possession he will be charged with its value, does not itself operate as a sale of the property to the agent so as to enable him to confer title on a purchaser who purchases on the faith of the letter.16 678. Possession by Dealer in Similar Articles.-The better view seems to be that the bare possession of goods by one, though he may happen to be a dealer in that class of goods, does not clothe him with power to dispose of the goods as though he were owner, or as having authority as agent to sell to the preclusion of the right of the owner. If he sells as owner, there must be some other indicia of property than mere possession. There must be some act or conduct on the part of the owner whereby the party selling is clothed with the apparent ownership or authority to sell.17 So it has been held that a dealer in jewelry who received a valuable diamond ring to obtain a match for it, or, failing in that, to get an offer for it, could not by a sale thereof to an innocent purchaser divest the owner of his title.18 It has been held, however, that the delivery of goods to a merchant engaged in the sale of similar articles in such evidence of the bestowal of the right to dispose of the same as to protect a bona fide purchaser.19 So where it appeared that M., a broker who procured diamonds from larger dealers to sell to his customers, procured from the plaintiffs, dealers in diamonds, some diamonds for a customer, giving a receipt stating that they were received by him on approval to show to his customer, and to be returned to the plaintiff "on demand," and the defendant purchased them from M., in good faith, supposing him the owner, having previously purchased from M. and paid him for two other lots of diamonds obtained by M. from the plaintiff in the same way, it was held that the defendant got good title to the diamonds.20 679. Receiving Payment Generally.-A debtor is bound to know the authority of a third person to whom he pays money on account of his creditor, and if, failing to ascertain such authority, he makes 15. Reitz v. Martin, 12 Ind. 306, 74 1050, 28 L.R.A. (N.S.) 341. Am. Dec. 215. 16. Calhoun v. Thompson, 56 Ala. 166, 28 Am. Rep. 754. 17. Gelman, etc., Co. v. Norton, 89 Ia. 434, 56 N. W. 663, 48 A. S. R. 400; Levi v. Booth, 58 Md. 305, 42 Am. Rep. 332; Oliver Ditson Co. v. Bates, 181 Mass. 455, 63 N. E. 908, 92 A. S. R. 424, 57 L.R.A. 289. 18. Levi v. Booth, 58 Md. 365, 42 Am. Rep. 332. 19. Wright v. Solomon, 19 Cal. 64, 79 Am. Dec. 196. See also Galbraith v. Weber, 58 Wash. 132, 107 Pac. Note: 3 A. S. R. 202. 20. Smith v. Clews, 105 N. Y. 283, 11 N. E. 632, 59 Am. Rep. 502. On a subsequent appeal of Smith v. Clews, 114 N. Y. 190, 21 N. E. 160, 11 A. S. R. 627, 2 L.R.A. 392, on a different showing of facts, it was held that the agent had no ostensible authority to sell the diamonds and that therefore the purchaser acquired no title. See also Frantz v. Fink, 125 La. 1013, 52 So. 131, 28 L.R.A. (N.S.) 539, approving and following Smith v. Clews, 105 N. Y. 283, 11 N. E. 632, 59 Am. Rep. 502. |