George L. (George Louis) Reinhard.

A treatise on the law of agency in contract and tort; including special chapters on attorneys at law, auctioneers, bank officers, brokers, factors, insurance agents, traveling salesman, public agents and officers, master and servant online

. (page 70 of 82)
Online LibraryGeorge L. (George Louis) ReinhardA treatise on the law of agency in contract and tort; including special chapters on attorneys at law, auctioneers, bank officers, brokers, factors, insurance agents, traveling salesman, public agents and officers, master and servant → online text (page 70 of 82)
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Kornemann v. Monaghan, supra;
McKinly v. Dunham, 55 Wis. 515.

♦"Law v. Stokes, 3 Vroom (N. J.)
249. 90 Am. Dec. 655.

♦-"Diversby v. Kellog, 44 111. 114,
92 Am. Dec. 154.

*^^ Diversby v. Kellog, supra.

♦" Babcock v. Deford, 14 Kan. 408.




for the list prices.*-^ In that case, however, the purchaser had notice
that the agent had no such authority, from the fact that the latter
agreed to make good the discount himself, if the principal did not do
so; otherwise it would seem that the purchaser had the right to dic-
tate his own terms of the purchase ; and if such terms were not agree-
able to the seller, he should decline to forward the goods. It is
within the implied powers of such an agent, who is paid a certain
salar}^ and traveling expenses for his compensation, to bind his prin-
cipal for the use of horses and carriages used by him in his prin-
cipal's business;'*^* the reason for this, as we have seen in a previous
place in this work,*^° is that the agent's power to do a thing includes
all the necessary means of doing it; and where an agent is sent by
his house with large trunks and sample-cases, it is but natural that
he should have the means of transporting these over the route of his
travels. Inasmuch as even an agent who has the goods which he is
to sell in his possession has no implied authority to barter or exchange
them for other goods, or articles, or pledge them for his own debt,*^^
it follows that an agent of the character now under consideration
has no such implied powers. And a commercial traveler, even
though he have authority to collect accounts and receive money and
checks payable to his principal, has no implied authority to indorse
his principal's name on such checks; and if a bank pay such checks on
his indorsement, it will be responsible to the principal.*-'^ Established

*^ Taylor Mfg. Co. v. Brown ( Tex.
App.), 14 S. W. 1071.

*^* Bentley v. Doggett, 51 Wis. 224,
37 Am. Rep. 827; Huntley v. Ma-
thlas, 90 N. C. 101, 47 Am. Rep. 516.
59 Am. Dec. 331.

*^Ante, § 326.

"^Wheeler & Wilson Mfg. Co. v.
Oivan, 65 Mo. 89.

*^ Jackson v. National Bank, 92
Tenn. 154 The court in that case,
speaking through Holman, J., said:
"No authority will be implied from
an express authority. Whatever
powers will be conceded to the
effectual exercise of the express
powers will be conceded to the
agent by implication. In order,
therefore, that the authority to
34 — Principal and Agent.

make or draw, accept, and indorse
commercial paper as the agent of
another may be implied from some
other express authority, it must be
shown to be strictly necessary to
the complete execution of the ex-
press power. The rule is strictly
enforced that the authority to exe-
cute and indorse bills and notes as
agent will not be implied from an
express authority tor transact some
other business, unless it is absolute-
ly necessary to the exercise of ex-
press authority: Tiedeman Com.
Paper, § 77. Possession of a
check payable to order, by one
claiming to be agent of the payee,
is not prima facie proof of author-
ity to demand payment in the name




usage will, however, as in the case of any other agent's authority,
enter into the contract of agency of a drummer, if there be nothing
in that instrument to the contrary; so, where there is a general and
well-known usage that an agent to solicit orders may collect payment,
the agent in the given case will be presumed to possess such authority,
in the absence of evidence to the contrary.*^^ Nor has a drummer
an implied authority to sell his samples and take pay for them;
and if he does, the owner may recover their value from the purchaser,
in a proper action.*^^ A drummer's samples are not included in the
ordinary baggage of a passenger for which a common carrier becomes
liable in case of loss or injury to the baggage, unless the baggage be-
came injured or lost by the "gross" negligence of the carrier ; but the
company is liable, even for ordinary negligence, or as an insurer,
where the railroad-agent having control of the receipt of the baggage
had knowledge of what was contained in such baggage, and no mis-
representation as to such contents was made to such railroad agent

of the true owner: Idem, § 312.
A bank is obliged by custom to
honor checks payable to order, and
pays them at its peril to any other
than the person to whose order they
are made payable: Idem, § 431. It
must see that the check is paid to
the payee therein named upon his
genuine indorsement, or It will re-
main responsible: Pickle v. Muse,
88 Tenn. 380, 12 S. W. 919. An
authority to receive checks in lieu
of cash in payment of bills placed
in the hands of an agent for collec-
tion does not authorize the agent to
Indorse and collect the check:
Graham v. Institution, 46 Mo. 186;
1 Wait Act. & Def. 284; 1 Daniel
Neg. Inst. 294. The indorsement of
the check was not a necessary inci-
dent to the collection of accounts:
Graham v. Institution, 46 Mo. 186.
It follows that a drummer or com-
mercial traveler, employed to sell
and take orders for goods, to collect
accounts, and receive money, and
checks payable to the order of his
principal, is not by implication au-

thorized to indorse such principal's
name to such checks. No^ equitable
considerations can be invoked to
soften seeming hardships in the en-
forcement of the laws and rules
fixing liability on persons handling
commercial paper. These laws are
the growth of ages, and the result
of experience, having their origin
in necessity. The inflexibility of
these rules may occasionally make
them seem severe, but in them is
found general security."

*"' Meyer v. Stone, 46 Ark. 210,
55 Am. Rep. 577; Janney v. Boyd,
30 Minn. 319. Some courts have
indeed held that a commercial trav-
eler or drummer whose business it
is to solicit orders, has implied au-
thority to collect payment also:
Trainor v. Morison, 78 Me. 160, 57
Am. Rep. 790; Collins v. Newton, 7
Baxt. (Tenn.) 269. But the great
weight of authority is to the con-

^"Kohn V. Washer, 64 Tex. 131,
53 Am. Rep. 745.


by the drummer having it in charge.*^" In such case, the contract
is a personal one between the drummer and the carrier, and the
owner of the samples (the drummer's principal) has no right of

§ 464. Pedlers and hawkers. — Statutes and municipal ordinances
requiring pedlers and hawkers to procure a license for the privilege
of selling their commodities, and imposing a penalty for failure to
procure such license, are constitutional as a proper exercise of the
police power: occupations of this character, if not restrained, are
liable to become nuisances, and a license fee may be imposed which
is large enough to act as a restraint, or to limit the number of
persons to engage in it.*^^ But such statutes or ordinances must
make no distinction between classes of citizens or residents of dif-
ferent states or of subdivisions of the same states.*^^ An apparent
exception with regard to some classes of citizens is upheld by the
courts in sustaining provisions granting the exclusive privilege of a
community or neighborhood to physically disabled soldiers and sailors,
or conferring such privilege without pay upon such of these as are
not able to make a livelihood by manual labor, or upon crippled or
disabled persons without reference to whether or not they were for-
merly soldiers or sailors.^^'* Such statutes have been held constitu-
tional although the effect is to exclude all able-bodied persons from
the privilege.'*^^ The holder of a license to peddle can not delegate

"" Humphreys v. Perry, 148 U. S. thorized, unjust and oppressive

627; Dibble v. Brown, 12 Ga. 217, While the argument of the appel-

56 Am. Dec. 460; Stimson v. Con- lant on this subject is ingenious,

necticut River R. Co., 98 Mass. 83, and shows research and learning,

93 Am. Dec. 140. we do not regard the subject as

*^' Dibble v. Brown, supra. fairly debatable. The recital in the

"- City of Duluth v. Krupp, 46 earlier acts shows by the express

Minn. 435; Morrill v. State, 38 Wis. declaration of the lawmakers, what

428, 20 Am. Rep. 12. is quite apparent from the nature

^'^ Commonwealth v. Gardner, 133 of the several provisions they con-
Pa. St. 284, 19 Am. St. 645, 7 L. R. tain, that the purpose of the legis-
A. 666. lation was the protection of society

*^ In re Fisher, 3 Lane. Bar. 391; from the lawless, able-bodied wan-
In re Morris, 5 Pa. Co. Ct. 193. derer, whose presence is a source

"^ Commonwealth v. Brinton, 132 of apprehension in any community.

Pa. St. 69. "Especially is it urged," To refuse a license which would

said the court in this case, "that serve as an excuse for visiting pri-

the discrimination in favor of those vate houses and securing access

under physical disability, is unau- thereto, to the able-bodied stranger,


the rights and privileges thereunder to another, nor is the same
transferable, the rights conferred being of a personal nature; and,
ill such cases as these, the license would be no protection to the
transferee, even though he were an agent or servant of the licensee,
unless the employment of an agent or servant were permitted by
statute.'*^*' In England, it seems that the licensed party may, by
virtue of the statute, employ a servant to drive the wagon and sell
the goods, and the license is a protection to' both.*^^ A license to
peddle may not be conferred upon a corporation, unless there is a
statute which permits it.*^^ A statute authorizing municipalities of
a certain grade to collect license fees, etc., from pedlers, etc., is not
obnoxious to the constitutional provision requiring uniformity of
legislation for the entire state ;*^^ such a fee being held not to be a
tax within the strict sense of the word, but simply a license charge.
Under modern authority pedling and hawking are not considered
immoral in themselves, or contrary to the public interests; and,
hence, they may be regulated or restricted only on the theory of pre-
venting a nuisance. ^^° Some courts hold that it is immaterial whether
the license is required upon the theory of a police power, as a means
of restraining certain occupations, or whether it comes properly
within the taxing power of the legislature, as a means of raising
revenue; that in either case it is a constitutional exercise of the
legislative function, and is accomplished by means of issuing a li-
cense.**^ The better opinion, however, seems to be that the imposing
of a license tax upon pedlers and hawkers for the purpose of raising
revenue would be unconstitutional, and that the power may be exer-
cised only as a police regulation.*'*^ Under this view the license fee
must not be unreasonable or oppressive in amount.**^ Hence, a city
ordinance requiring hawkers or pedlers who travel on foot to take
out a license, paying therefor a fee of ten dollars for the first day,

was an exercise of police power, as "" State v. Wagener, 69 Minn. 206,

clearly as the laws regulating the 65 Am. St. 565.

granting of liquor licenses or the "^ Johnson v. Asbury Park, 60 N.

rule of fire-arms." J. L. 427, 431.

*="> Gibson v. Kauffield, 63 Pa. St. ^" Van Hook v. Selma, 70 Ala. 361,

168; Temple v. Sumner, 51 Miss. 13, 45 Am. Rep. 85; Easterly v." Irwin,

24 Am. Rep. 615. 99 Iowa 694.

^^'51 & 52 Vict, ch. 33. "'State v. Glavin, 67 Conn. 29;

«' Wrought Iron Bridge Co. v. State Center v. Barenstein, 66 Iowa

Johnson, 84 Ga. 754. 249,

"" Johnson v. Asbury Park, 60 N.
J. L. 427, 431.


and five dollars for each subsequent day, if traveling on foot; and,
if traveling with one horse, twenty dollars the first day and fifteen
dollars for each subsequent day; but if traveling with two or more
horses, twenty-five dollars for the first day and fifteen dollars for each
subsequent day, — was held invalid by the supreme court of ilichigan,
as being unreasonable and amounting to practical prohibition.*** But
the same court h6ld a license fee of five dollars per week from all
classes of hawkers and pedlers reasonable and valid. **^ There is
in a municipality no inherent power to exact a license fee for ped-
ling or hawking, and such power can be exercised only when granted
by the legislature ;**® and statutes delegating such power to munic-
ipalities should not be construed beyond the natural import of their
language; and when this is doubtful, as to whether or not the power
has been conferred, the statute should be interpreted so as to relieve
the citizen of the burden.**'^ Neither can such power, when properly
delegated, be redelegated by the municipality to a board or committee
or other person, unless the power of redelegation is expressly men-
tioned or clearly implied in such statute. This is upon the familiar
principle that delegated authority which involves the exercise of dis-
cretion and judgment can not be redelegated.**^ The state, within its
constitutional sphere, may prohibit some occupations entireh'^, and the
courts will not interfere with the legitimate exercise of such right. **^
And it is immaterial whether the commodities as to which the license
fee is imposed be manufactured in the same state in which they are
to be sold or not; but there must be no interference with interstate
or foreign commerce, or the statute requiring a license will be un-

§ 465. Sales of goods by drummers and other agents — Statute of
frauds. — The 17th section of the English statute of frauds, and equiv-
alent sections enacted by the legislatures of different states in this

"* Brooks V. Mangan, 86 Mich. "' State v. Glavin, 67 Conn. 29, 34.

576, 24 Am. St. 137. ''■' Cooley Const. Lim. (6th ed.)

^^'^ People V. Baker, 115 Mich. 199, 742.

73 N. W. 115. "" Brennan v. Titusville, 153 U. S.

'*' Smith Munic. Corp., § 1477; 289; City of Huntington v. Mahan,

Shelton v. Mobile, 30 Ala. 540, 68 142 Ind. 695; City of Bloomington

Am. Dec. 143; Van Hook v. Selma, v. Bourland, 137 111. 534; Ex parte

70 Ala. 361, 45 Am. Rep. 85. Thomas, 71 Cal. 204; Ex parte

"'Ex parte Taylor, 58 Miss. 478, Rosenblatt, 19 Nev. 439, 3 Am. St.

38 Am. Rep. 336. See also. Ken- 901.
nedy v. People, 9 Colo. App. 492.


country, are generally applicable to a contract for the sale of goods
by a drummer or other traveling agent who does not deliver on sale.*^^
As the rule of law differs in different states with respect to the
question whether such a sale falls within the statute at all, and if so,
what will be its construction, etc., the governing rule of law must
always be sought in the jurisdiction where the contract was made or
attempted to be made, and the principles here stated are of general
application only. Under the 17th section of the English statute, a
contract or order for goods of the value of ten pounds sterling
($50.00) or more can not be enforced unless it is in writing, or
unless there has been a delivery, receipt and acceptance of the goods,
in whole or in part, or payment or part payment of the purchase price,
or of some earnest-money.*^^ Wliether the amount is sufficient
or not to bring the case within the statute depends sometimes upon
the question whether the sale of different articles of goods of various
kinds, the value of each of which is less than $50.00 (or whatever
the statutory amount may be), is an entire contract within the mean-
ing of the statute, or whether each article constitutes a separate sale : if
it was all one sale, it of course comes within the provisions of the stat-
ute, unless the value or price of all the articles was less than $50.00;
but if each article was sold separately, and its price or value was less
than $50.00, the statute will not apply.*^^ Whether the subject-
matter of a contract falls within the purview of the statute also
depends upon whether or not the object to be accomplished is a
sale of personal property or a contract for work and labor or material ;
for if an article is contracted for which has as yet no existence,
and, when manufactured and delivered according to the contract,
would not be a sale of personal property, but might simply be
work and labor and material furnished, the statute does not apply.
It has been held in England that "if the contract be such that when
carried out it would result in the sale of a chattel, the party can not
sue for work and labor; but if the result of the contract is that the
party has done work and labor, which ends in nothing that can become
the subject of a sale, the party can not sue for goods sold and deliv-
ered."* ^^^ But the weight of authority in this country is that an
order to manufacture and deliver is not a sale. To employ a per-
son to manufacture and furnish ironwork for a building, for
example, is not a contract within the statute of frauds for the
sale of goods ;*^* but where the essence of the contract is the sale

«i See Hausman v. Nye, 62 Ind. *^^ Allard v. Greasert, 61 N. Y. 1.
485, 30 Am. Rep. 199; Winner v. *"a Lee v. Griffin, 1 Best & S. 272.
Williams, 62 Mich. 363. «* Heintz v. Burlvhard, 29 Or. 55.


of goods, though they do not exist in the form in which they are to be
delivered, having yet to undergo a process of manufacture, the contract
is within the scope of the statute.*^^ In other words, the contract
must be essentially for the sale of goods, and not for the manufacture
of an article or articles or for the employment of labor.*^® A sale
requiring a delivery, whether present or future, is within the letter
and spirit of the statute; and hence, executory contracts are as fully
within its meaning as others ;*^'^ but when the delivery is made at
the time of the sale, followed by an aceptance, the requirement of the
statute is fulfilled, and no written memorandum is necessary.*^®
On the other hand, when the contract is in writing, or there is a
cash payment, in whole or in part, of the purchase-money, no de-
livery is necessary under the statute to complete the sale.*^^ A de-
livery of a portion of the goods is enough, if accepted by the pur-
chaser ;*'''' but the delivery and acceptance of samples as mere speci-
mens is not sufficient to take the transaction out of the statute.**'^
When a sale is relied upon and no written memorandum is produced,
the burden of proving a delivery and acceptance is upon the party
alleging it; the question being for the Jury.^®^ If there was no
memorandum made or earnest-money paid, three things are necessary
to make the contract binding: (1) a delivery by the seller; (2) a
receipt by the buyer; (3) an acceptance by the bu3^er.'*^^ There
must be an actual receipt of the goods or what is equivalent to it:*®*
it will not be sufficient for the seller to show that the goods were
as represented and that he had otherwise fully complied with his
agreement;***^ hence, the purchaser may refuse to accept the goods

31 L. R. A. 508. See also, Mattison 26 Wis. 511; Edwards v. Grand

V. Westcott, 13 Vt. 258; Winship v. Trunk R. Co., 48 Me. 379.
Buzzard, 9 Rich. L. (S. C.) 103. '=' Hough taling v. Ball, 19 Mo. 84,

"^ Prescott V. Locke, 51 N. H. 94, 59 Am. Dec. 331.
12 Am. Rep. 55; Pitkin v. Noyes, 48 ""Pierce v. Gibson, 2 Ind. 408.
N. H. 294, 2 Am. Rep. 218. ""Austin v. Boyd, 23 Mo. App.

*=« Wharton v. Missouri Car Foun- 317; Garfield v. Paris, 96 U. S. 557.
dry Co., 1 Mo. App. 577; Passaic "'Moore v. Love, 57 Miss. 765.
Mfg. Co. V. Hoffman, 3 Daly (N. Y.) "-Johnson v. Watson, 1 Ga. 348.
495; Heintz v. Burkhard, 29 Or. 55, "^Browne Stat, of Frauds, § 316,

31 L. R. A. 508; Meincke v. Falk, 55 et seq.; Benjamin Sales, § 138, et

Wis. 427. seq.

"'Bennett v. Hull, 10 Johns. (N. ■"''» Shepherd v. Pressey, 32 N. H.

Y.) 364; Ide v. Stanton, 15 Vt. 685, 49; Jones v. Mechanics' Bank, 29

40 Am. Dec. 698; Hooker v. Knab, Md. 287, 96 Am. Dec. 533.

"" Stone v. Browning, 68 N. Y. 598.


and repudiate the sale at any time ; but he must do so before or within
a reasonable time after he receives the goods/*'® or he will be held
to have accepted them. Wliere the purchaser takes possession of
the goods merely for the purpose of inspection, this is not an ac-
ceptance, and he may, within a reasonable time thereafter, repudiate
the contract, upon giving timely notice;*®'^ but if the purchaser,
having the right of inspection, sells the goods without exercising such
right, he thereby waives the right to inspect, and the act amounts
to an acceptance.*®^ Whether a delivery to a common carrier con-
stitutes an acceptance is a question of great importance in the con-
struction of the section. If nothing were required but a deliver}^
to complete the sale, it would be sufficient to deliver to a public
carrier, and especially so if the carrier had been designated by the
purchaser: such a delivery constituting a receipt of the goods by the
purchaser;*®^ but a delivery and receipt, as we have seen, are not
enough, under the statute: there must also be an acceptance by the
purchaser, for the two are not identical. The buyer has the right
of inspection, and this continues until he has had an opportunity
to ascertain whether he desires to receive the goods or not:*'** hence
the delivery to a carrier, though designated by the purchaser, is not
an acceptance of the goods, unless such carrier has been specially
appointed with that end in view, his general designation to transport
the goods not being sufficient. *'^^ The true rule would seem to be
then, that delivery to a carrier designated by the purchaser is a re-
ceipt but not. an acceptance of the goods: the carrier being the pur-
chaser's agent for the one but not for the other purpose ; and that the
right to repudiate the contract continues until the goods arrive at
their destination and have been taken into custody by such purchaser,
either actually or constructively. The buyer may refuse to accept

*«« Spencer v. Hale, 30 Vt. 314, 73 Smith v. Brennan, 62 Mich. 349;

Am. Dec. 309. Grimes v. Van Vechten, 20 Mich.

*" Hill V. McDonald, 17 Wis. 97. 410; Johnson v. Cuttle. 105 Mass.

^'Benjamin Sales, § 181; Liggett 447, 7 Am. Rep. 545; Jones v. Me-

& Myers Tob. Co. v. Collier, 89 Iowa chanics' Bank, 29 Md. 287, 96 Am.

144; Sullivan v. Sullivan, 70 Mich. Dec. 533; Billin v. Henkel, 9 Colo.

583; Spencer v. Hale, 30 Vt. 314, 73 394; Keiwert v. Meyer, 62 Ind. 587,

Am. Dec. 309. 30 Am. Rep. 206; Lloyd v. Wright,

*«» Bacon v. Eccles, 43 Wis. 227. 25 Ga. 215; Cross v. O'Donnell, 44 N.

^■^ Lloyd v. Wright, 25 Ga. 215; Y. 661; Rodgers v. Phillips, 40 N.

Browne Stat, of Frauds, § 327. Y. 519; Wilcox Silverplate Co. v.

*^^Allard v. Graesert, 61 N. Y. 1; Green, 72 N. Y. 17.


the goods for an}' reason satisf actor}' to himself ; for it is not a ques-
tion of what he ought to do, but of what has been done."*"- The ques-
tion of acceptance, like that of receiving, is generally a question of fact
for the jury -^'^ if, however, the facts are not in dispute, and but one
conclusion may be drawn from them, it is a question of law for the
court.*"'* It is not necessarj', however, that there should be a manual
taking possession of the goods by the buyer in person ; for the accept-
ance may be constructive — although it must be clear and unequiv-
ocal.*^^ What we have said on the subject of the statute of frauds
applies, of course, to the 17th section of the English statute and to
the similar sections adopted by American states ; wherever the provis-
ions vary from this section, they may not be subject to the same con-
struction. In ordinary sales, not within the provisions of this section,
a delivery to a public carrier without condition is sufficient to pass
the title to the property to the vendee ; the carrier being the bailee of
the vendee, and not of the vendor, subject to the right of inspection. ^^^
Payment of earnest-money or part payment of the price of the goods
ordered, and written memoranda by the purchaser, are such rare oc-
currences in sales of goods by commercial travelers or drummers that
we do not regard these topics of sufficient importance to enter upon a
discussion of them in a work of this character ; and the reader is re-
ferred to works on sales and the statute of frauds for further in-

*'=Gibbs V. Benjamin, 45 Vt. 124, v. Labreche, 63 N. H. 397; Stone v.

131; Pope v. Allis, 115 U. S. 363, Browning, 68 N. Y. 598. What is a

Online LibraryGeorge L. (George Louis) ReinhardA treatise on the law of agency in contract and tort; including special chapters on attorneys at law, auctioneers, bank officers, brokers, factors, insurance agents, traveling salesman, public agents and officers, master and servant → online text (page 70 of 82)