Brown v. Berry

14 N.H. 459

• Court: Superior Court of New Hampshire
• Decided: December 15, 1843
• Status: Published

Opinion

Parker, C. J.

On the sixth of December, the day the note became due, the clerk of Berry, one of the defendants, was at the place of payment with skins ready for delivery. If these skins had been such as the defendant promised to deliver, the contract would have been discharged by the readiness to deliver at the time and place. Story on Sales, § 307, 308, and cases there cited ; Chitty on Contracts 727, note; 4 N. H. Rep. 40, Robinson vs. Batchelder.

But it appears that the skins were not such as the contract required. There was, therefore, no sufficient tender, and the instructions to the clerk to settle cannot avail. If the plaintiff had been there, a farther arrangement might, or might not have been made. His absence, the defendants not being in readiness to perform the contract on their part, cannot relieve them. The contract was broken by the failure to have at the appointed place, skins of a suitable quality.

The next question is, whether the subsequent acceptance of the skins by one of the firm of Wiggin & Co., and the delivery of the note by him to the clerk amounts to payment, or accord and satisfaction. This depends upon the authority he possessed as the plaintiff’s agent. Wiggin & Co. were special agents to receive payment. Or perhaps Wig-gin alone was so. It is not necessary to consider that question. The case has been argued as if the authority was given to Wiggin & Co. They were authorized to take charge of the skins mentioned in the note, if the defendants should deliver them. The plaintiff did not give them the means of judging what skins would answer the description in the note, and yet he requested them to take charge of them, if delivered, aud put the note in their possession. The reasonable inference is, that they were authorized to receive the skins from the defendant, and deliver up the note. And if they, or one of them had attended at Clark’s on the day, and there received the skins from the clerk, it is at least questionable whether the plaintiff would not have been bound by the acceptance, notwithstanding the skins were of inferior quality. It might well be held that by authorizing them to receive payment, he gave them power to judge what skins were sufficient for that purpose. And if he did not give them the means of judging, the fault was his own so long as no fraud was practised.

But the transaction on a subsequent day was without authority. Wiggin & Co. had then no authority to receive payment, even in skins of a suitable quality. If Wiggin had attended at Clark’s on the day specified, and then refused to receive the skins which were there because the quality was inferior, the plaintiff’s right of action would have been complete, and Wiggin would not have been authorized to settle on a subsequent day on receiving such skins as the note specifies. The agent had authority to receive payment only, and that only at the time mentioned. Still less could he on a subsequent day receive skins of an inferior quality, or compromise and surrender the plaintiff’s rights. It is a case of a special limited authority exceeded, and not of a disregard of instructions as in Hatch vs. Taylor, 10 N. H. Rep. 538.

As Wiggin had no authority to receive the skins when they were delivered to him, the plaintiff was neither bound to return them, nor to give notice. The defendants cannot complain. Berry was aware that the skins he sent were not such as the contract required. This fact is shown by his instructions to his clerk; and the extent of the authority of Wiggin & Co. appeared by the memorandum on the note.

Judgment on the verdict.