the payment, it is at his own risk. The general rule, as to the effect. of payment to a selling agent, is that where the principal has clothed the agent with the indicia of authority to receive payment, as by intrusting to him the possession of the goods to be sold, the purchaser is warranted in paying the price to the agent. And it has been held that a sales agent with express authority to collect all or any part of the purchase price at time of sale has implied authority to make the collection when he returns, according to agreement, to show the purchaser how to use the machine sold. On the other hand when the agent has not the possession of the goods, or other indicia of authority, and is only authorized to sell, if the purchaser pays the price to the agent he does so at his peril, and it devolves on him, in a suit for the purchase money by the principal, to prove that the agent was also authorized to receive payment. So it is generally held that an agent employed to make sales, and selling on credit, is not authorized subsequently to collect the price in the name of the principal, and payment to him will not discharge the purchaser, unless he can show some authority in the agent other than that necessarily implied in a mere power to make the sale. When payments are made over the counter of the principal's store to a shopman accustomed to receive money there for his employer, the authority to receive payment will be implied in favor of innocent persons, because the principal by his own act gives to the agent an apparent authority to receive such payment. But even in the latter instance if the principal forbids such payments, and requires all payments to be made to himself personally, or to a cashier, and gives a customer notice thereof, the customer would have no right to insist on the apparent rather than the real authority of the agent." 680. Authority of Traveling Salesman to Receive Payment.—The question as to the authority to receive payment has frequently arisen 1. Dutcher v. Beckwith, 45 Ill. 460, 92 Am. Dec. 232. See PAYMENT, vol. 21, p. 31 et seq. 2. Meyer v. Stone, 46 Ark. 210, 55 Am. Rep. 577; Dias v. Chickering, 64 Md. 348, 1 Atl. 709, 54 Am. Rep. 770; Butler v. Dorman, 68 Mo. 298, 30 Am. Rep. 795; Law v. Stokes, 32 N. J. L. 249, 90 Am. Dec. 655; SearrittComstock Furniture Co. v. Hudspeth, 19 Okla. 429, 91 Pac. 843, 14 Ann. Cas. 857; Galbraith v. Weber, 58 Wash. 132, 107 Pac. 1050, 28 L.R.A. (N.S.) 341. Note: 18 L.R.A. 666. 3. American Sales Book Co. V. 4. Butler v. Dorman, 68 Mo. 298, 30 Am. Rep. 795; Scarritt-Comstock Furniture Co. v. Hudspeth, 19 Okla. 429, 91 Pac. 843, 14 Ann. Cas. 857. 5. Kane v. Barstow, 42 Kan. 465, 22 Pac. 588, 16 A. S. R. 490; Butler v. Dorman, 68 Mo. 298, 30 Am. Rep. 795; Law v. Stokes, 32 N. J. L. 249, 90 Am. Dec. 655; Kohn v. Washer, 64 Tex. 131, 53 Am. Rep. 745. Notes: 38 Am. Rep. 682; 47 Am. Rep. 520; 16 A. S. R. 494; 53 A. S. R. 126. 6. Law v. Stokes, 32 N. J. L. 249, 90 Am. Dec. 655. 7. Law v. Stokes, 32 N. J. L. 249, Cowdrey, 100 Ark. 325, 140 S. W. 134, 90 Am. Dec. 655. 38 L.R.A. (N.S.) 700. in the case of a traveling salesman or drummer. Of course a payment to a traveling salesman only authorized to sell goods may be ratified by the principal, thereby making it valid, and if the possession of the property sold was intrusted to the possession of the salesman his ostensible authority to receive payment is upheld, and though he was not intrusted with the goods, there are decisions to the effect that he has ostensible authority to receive payment, in the absence of a prohibition known to the buyer from circumstances, custom or direct. notice.10 It is the better view, however, that the mere fact that an order was taken by a traveling salesman does not itself confer implied or ostensible authority subsequently to receive payment;11 and this is especially true where the authority of such salesman is merely to solicit orders to be transmitted to his principal for acceptance. 12 Thus where the plaintiff's traveling salesman sold a bill of goods to the defendant on credit, and the plaintiff forwarded the goods to the latter, together with a letter and bill of items, at the top of which was printed a provision that payment must be made to the principal, and that salesmen were not authorized to collect, and the defendant's bookkeeper received the bill, but the printed stipulation was not read, and afterwards the defendant, at his own place of business, paid the agent for the goods, it was held that this did not discharge the debt to the plaintiff.18 In jurisdictions where a traveling salesman ordinarily has no implied power to collect, circumstances may be such as to give him such authority, as where he is held out by the principal as one having general powers.14 And where it was a part of the terms of the contract of a sale on credit that the buyer should make payment to the traveling salesman instead of incurring the cost and trouble of transmitting payment to the principal, payment to the salesman has been held good though in fact he had no authority to receive payment and had not disclosed to his principal the provision for payment to him.15 And a traveling salesman, who had not the possession of the 8. Note: 7 Ann. Cas. 652. Okla. 429, 91 Pac. 843, 14 Ann. Cas. 9. Notes: 18 L.R.A. 666; 7 Ann. 857; Moon Bros. Carriage Co. v. Cas. 652. Devenich, 42 Wash. 415, 85 Pac. 17, 7 10. Trainer v. Morison, 78 Me. 160, 11. Simon v. Johnson, 105 Ala. 344, 16 So. 884, 53 A. S. R. 125; Meyer v. Stone, 46 Ark. 210, 55 Am. Rep. 577; Butler v. Dorman, 68 Mo. 298, 30 Am. Rep. 795; Law v. Stokes, 32 N. J. L. 249, 90 Am. Dec. 655; Scarritt-Comstock Furniture Co. v. Hudspeth, 19 Notes: 18 L.R.A. 663; 7 Ann. Cas. 12. McKindly v. Dunham, 55 Wis. 515, 13 N. W. 485, 42 Am. Rep. 749. 13. Law v. Stokes, 32 N. J. L 249, 90 Am. Dec. 655. 14. Notes: 7 Ann. Cas. 651; 14 Ann. Cas. 858. 15. Putnam v. French, 53 Vt. 402, 38 Am. Rep. 682. goods, may still receive payment so as to bind his principal, where such is the general and known usage, and it has been recognized by the principal.16 But it has been held that a custom existing in a certain town for the merchants to pay such salesmen for goods purchased by sample will not affect a nonresident firm which has no notice of the custom.17 681. Effect of Notice on Bill Rendered.-There is authority to the effect that a notice on a bill of goods that salesmen are not authorized to collect is not binding on a purchaser who has failed to read it, at least where it is not in a conspicuous part of the bill.18 Thus in case of a sale on credit by a traveling salesman with ostensible authority to receive payment, it has been held that the indorsement on a bill sent by the principal to the buyer of the words "payable at office," which were not noticed by the buyer in checking the items of the bill, was not notice of the want of authority on the part of the agent to receive payment.19 So where the seller is a corporation the statement on a bill rendered "pay no money to agents" has been held not to constitute notice of a limitation on the ostensible authority of the agent who made the sale to receive payment, as, since the corporation could act only through an agent, the notice was equivalent only to notice not to pay to an unauthorized agent.20 On the other hand there are authorities which hold that a notice on the face of the bill of goods sent by the seller to the purchaser that salesmen are not authorized to collect, though not read by the purchaser, is nevertheless binding on him. Thus it has been held that the words "agents not authorized to collect," in large print on the face of a bill of goods, constitute conclusive notice to the purchaser not to pay the agent who sold them therefor.2 682. Medium of Payment.-As a general rule if the agent has authority to receive payment, this does not authorize him to receive anything but money," and it has been held that though authorized to sell on credit, he has no authority to take in payment a note payable 16. Meyer v. Stone, 46 Ark. 210, 55 Am. Rep. 577. See also Trainer v. Morison, 78 Me. 160, 3 Atl. 185, 57 Am. Rep. 790. Cowdrey, 100 Ark. 325, 140 S. W. 134, 38 L.R.A. (N.S.) 700. 1. Law v. Stokes, 32 N. J. L. 249, 90 Am. Dec. 655; McKindly v. Dun Notes: 16 A. S. R. 494; 53 A. S. R. ham, 55 Wis. 515, 13 N. W. 485, 42 126; 7 Ann. Cas. 651. 17. Note: 7 Ann. Cas. 651. 18. Trainer v. Morison, 78 Me. 160, 3 Atl. 185, 57 Am. Rep. 790; Putnam v. French, 53 Vt. 402, 38 Am. Rep. 682. Note: 7 Ann. Cas. 651. Am. Rep. 740. Note: 7 Ann. Cas. 651. 2. McKindly v. Dunham, 55 Wis. 515, 13 N. W. 485, 42 Am. Rep. 740. 3. Baldwin v. Tucker, 112 Ky. 282, 65 S. W. 841, 57 L.R.A. 451. Notes: 18 A. S. R. 493; 18 L.R.A. 19. Putnam v. French, 53 Vt. 402, 666; 7 Ann. Cas. 652; 9 Ann. Cas. to himself individually. On the other hand the ostensible authority of an agent intrusted with the possession of property with general power to sell to receive in payment notes payable to himself has been upheld to the extent, at least, that the question as to such authority was properly submitted to the jury for their determination. When a note in the name of the principal is taken for the price and the note is delivered by the agent to the principal, there is thereafter no implied authority on the part of the agent to receive payment; and when the agent receives a note payable to his principal in payment, he has no implied authority to transfer it. If the agent is authorized to receive checks payable to his principal, this will not include authority to indorse and receive payment on checks so received.8 683. Revocation of Authority.-Ordinarily the death of a principal is a revocation of the authority of an agent to act for him, and in case of an agent authorized to sell, the death of the principal revokes his authority, unless the power was coupled with an interest. 10 Accordingly where a seller made a contract for the sale of corn in his corn crib and appointed an agent to measure and deliver it, but died soon thereafter, it was held that this revoked the authority of the agent to make the delivery, and that, though such delivery was made by the agent in ignorance of his principal's death, it was insufficient to pass title to the buyer.11 If the authority to sell is coupled with an interest, it will survive the death of the principal.12 General authority to sell is not destroyed because of the unlawfulness of the act by an attempt to exercise it on Sunday, so as to entitle the principal to repudiate the sale if consummated, and recover possession of the goods sold.18 684. Modification and Rescission of Contract.-An agent having general authority to make sales has been held to have implied authority to modify an executory contract of sale which he has made, even though the original written contract of sale stated that "no verbal agreement of any kind appertaining to this order will be recognized and that all agreements must be in writing," 14 and where the agent 4. Baldwin v. Tucker, 112 Ky. 282, 21, p. 859. 65 S. W. 841, 57 L. R. A. 451. Note: 28 L.R.A. (N.S.) 341. 5. Galbraith v. Weber, 58 Wash. 132, 107 Pac. 1050, 28 L.R.A. (N.S.) 341. 6. Draper v. Rice, 56 Ia. 114, 7 N. W. 524, 8 N. W. 797, 41 Am. Rep. 88. 7. Note: 7 Ann. Cas. 652. 8. Jackson V. McMinnville Nat. Bank, 92 Tenn. 154, 20 S. W. 802, 36 A. S. R. 81, 18 L.R.A. 663. Note: 7 Ann. Cas. 652. 9. See PRINCIPAL AND AGENT, vol. 10. Staples v. Bradbury, 8 Greenl. (Me.) 181, 23 Am. Dec. 494. 11. Cleveland v. Williams, 29 Tex. 204, 94 Am. Dec. 274. 12. Knapp v. Alvord, 10 Paige (N. Y.) 205, 40 Am. Dec. 241. 13. Richards v. Richards, 98 Md. 136, 56 Atl. 397, 103 A. S. R. 393, 63 L.R.A. 724. 14. Bannon v. C. Aultman, 80 Wis. 307, 49 N. W. 967, 27 A. S. R. 37. Note: 37 L.R.A. (N.S.) 92. has authority to bind his principal to modification of the original contract by writing, it has been held that he may also do so by a parol agreement.15 Where the authority of an agent to sell is general, his authority to rescind a prior executed sale has also been upheld.16 Thus it has been held that where the powers of the selling agent are general, it is competent for him, with the consent of the purchaser, to rescind a prior executed sale, revest the title, and make a conditional sale to the same purchaser on terms which would leave the property at his principal's risk until the conditions were performed. And general authority as managing clerk, in the absence of the principal, has been held to authorize him to consent to take back goods sold to another, who tendered them back on the ground. that he was insolvent and unable to pay for them, and thus defeat attachments against the insolvent levied on the goods after the rescission.18 But, according to the great weight of authority, an agent who is only empowered by his principal to solicit orders for or to make sale of goods has no implied authority to modify or cancel such sale. After an order is executed or a sale completed, the authority of the agent in the matter is at an end. His authority is only to make contracts, to solicit orders for goods, or to make sale thereof. He has no implied power to give up interests that have been acquired, or to cancel rights which have been obtained.19 Authority to sell goods does not carry with it authority to compromise differences which may arise between the principal and those to whom the agent sells goods, by reason of the goods not coming up to the standard represented; and, where a purchaser relies on a compromise with such an agent, the burden is on him to establish the agent's authority (if such fact is in dispute) to effect compromises in such cases.20 It seems that an agent authorized to sell may stipulate as one of the terms of sale that the goods sold may be returned if not satisfactory. If intrusted with an article to sell, with no restrictions on his authority, he may sell subject to trial, and agree that the property may be returned and the sale rescinded if the article is not satisfactory to the purchaser.1 685. Proof of Agency.-General principles with respect to proof of the authority of an agent apply of course to the proof of the authority of an agent to sell, and as in case of other agents, declarations of the agent are not admissible to prove his agency or the extent 15. Bannon v. C. Aultman, 80 Wis. 307, 49 N. W. 967, 27 A. S. R. 37. 16. Note: 37 L.R.A. (N.S.) 93. 17. Scott v. Wells, 6 Watts & S. (Pa.) 357, 40 Am. Dec. 568. 132, 37 L.R.A. (N.S.) 91; Diversy v. Kellogg, 44 Ill. 114, 92 Am. Dec. 154. Note: 37 L.R.A. (N.S.) 91. 20. Scarrit-Comstock Furniture Co. v. Hudspeth, 19 Okla. 429, 91 Pac. 18. Sturtevant v. Orser, 24 N. Y. 843, 14 Ann. Cas. 857. 538, 82 Am. Dec. 321. 19. American Sales Book Co. Whitaker, 100 Ark. 360, 140 S. v. W. 1. Note: 37 L.R.A. (N.S.) 94. 2. See PRINCIPAL AND AGENT, vol. 21, pp. 820-822, 858. |