Clough v. Whitcomb

In an action for the price of goods sold and delivered, it appeared that they were delivered by the plaintiff to the defendant directly, upon written orders addressed to the plaintiff by the defendant, which an agent of the plaintiff solicited and forwarded. ffeldf that instructions were inapplicable to the case, which assumed a delivery of the goods to the defendant by the agent in pursuance of an oral contract between them. The allowance of a commission, by the seller of goods, to one who solicits orders for them, upon sales effected through such orders, does not render him, or prove him, an agent with authority to make absolute contracts of sale or barter.'

Contract on an account annexed for the price of goods sold and delivered by the plaintiff to the defendant. Trial, and verdict for the defendant, in the superior court, before Pitman, J., who allowed the following bill of exceptions : “ At the trial, it appeared, among other facts, that Pythagoras Clark, having previously been supplied with a peddler’s cart and various goods, including pens and ink, and also with printed blank orders, by the plaintiff, met the defendant twice at his place of business in Lawrence; on each of which times one such blank order was filled out by the defendant, specifying the quantity, kind and price of goods wanted, signed by him, and forwarded by Clark by mail to the plaintiff in Lowell, whereupon pens and ink so ordered, which were the goods for which recovery was sought in this action, were forwarded at two different times by the plaintiff from Lowell to the defendant in Lawrence, by a common carrier. “ It also appeared that Clark was to receive a commission on goods forwarded upon such orders, and had received from the defendant, since the delivery of said goods, stationery to an amount equal to the price of goods claimed, which Clark agreed with the defendant to receive, and did receive, in payment of said goods, under authority so to do as an agent of the plaintiff, as the defendant claimed and as Clark testified in general terms; but the plaintiff denied such agency, and this was the question to the jury. “ There was evidence tending to show that the plaintiff knew that the items in the first order had been sold by Clark to the r defendant on barter, before the articles were forwarded composing the second lot; and that, although the plaintiff and the defendant met and discussed the price of goods to be furnished under the second order subsequently to such knowledge, the plaintiff made no objection to said first barter trade, and said nothing as to it to the defendant at that time, or previously; and in regard to this last lot, the plaintiff testified that the sale was concluded between him and the defendant personally and not through Clark, but Clark and the defendant testified that these goods were furnished upon bargain made between them, and upon order sent to the plaintiff, like the first. “ The plaintiff contended that Clark was merely an agent to solicit orders, and that the defendant had no right to treat him otherwise; that he was no agent to sell, exchange, or barter the goods of the plaintiff. The defendant contended that he was an agent with all such authority. “ The judge instructed the jury, among other instructions not objected to, as follows : 1. If Clark had authority to sell, but not to barter, and delivered these goods on barter, the plaintiff’s remedy, if any, is on an action of another form, and not in this. 2. If Clark made the contract with the defendant for the goods, and the plaintiff agreed to give Clark a commission on said goods, then Clark was his agent to sell said goods. These instructions were given at the defendant’s request, after the charge; and were excepted to by the plaintiff.” A copy of one of the blank orders was annexed to the bill of exceptions, and appeared to be a printed form, addressed to the plaintiff, and giving the description, quantity and money price per dozen or per gross of goods desired from him.