Jaques v. Todd

3 Wend. 83

• Court: New York Supreme Court
• Decided: August 15, 1829
• Status: Published

Opinion

By the Court,

Marcy, J.

This case turns on the nature and extent of the authority of Bailey and Voorhees, as agents of the defendant. If they were his general agents ; if they were special agents, and the act done by them was within the scope of their powers; if in any instance they had in fact pledged his credit, and he had recognized their right to do so; or if he had, subsequent'to the purchase, in any way, however slight, indicated his assent to the pledge of his credit, in this particular case he is liable to the plaintiffs on the demand for which this action is brought.

The nature of this agency is to be gathered from the connection existing between the defendant and Bailey and Vorhees. ■ It appears the defendant was in the practice of consigning to them whatever produce he had for the New-York market. They sold it and gave him credit therefor. He purchased of them the goods which he required for his store at Waterford. He often sent to them for articles which he knew they did not usually keep, and was aware that .they had to purchase them to supply his order ; but these purchases were uniformly made in the name and on the responsibility of Bailey and 'Voorhees. Although Mr. Bailey states his house were the general agents of the defendant in New-York, and-were known to be such, this part of his testimony is to be taken in connection with what he had before said in relation to the agency. He had previously declared that the article in question was purchased on his own responsibility for the defendant; that he had never used, or had authority to use the credit of the defendant, in any instance whatever. Do these facts make out a general or a special agency 1 The distinction between a general and special agent is not always obvious: indeed, to trace the line that separates them is sometimes a matter of great nicety ; and I apprehend that the principal difficulty in this case relates to this distinction. “ By a general agent is understood, not merely a person substituted in the place of another for transacting all manner of business, (since there are few instances, in common use, of an agency of that description,) but a person whom a man puts in his place to transact all his business of a particular kind; as to buy and sell certain kinds of wares, to negotiate certain contracts, and the like.” (Paley on Agency ch. 3. sec. 5.) A person employed by another for a particular purpose, and acting under limited and circumscribed powers, is a special agent, and cannot bind his principal by any act exceeding the precise limits of his authority. (2 Saunders on Pl. and Ev. 732.) A factor, employed to sell goods, cannot pledge them. (id. 735.) A person, employed to sell articles at auction, at not less than a stated price, cannot, it is said, sell them at private, sale, even for a price beyond that fixed for the sale at auction. (Ambl. 498.) A principal who agrees to accept, and authorizes his agent to draw bills for advances on merchandise purchased for and consigned to him by such agent, is not liable for bills drawn on him by the agent, on account of his own property consigned to the principal. (1 Peters, 264.) A distinction is to be taken also between a special agent and a general agent, with instructions private or unknown to the person dealing with him, limiting and controlling, in particular instances, the exercise of his general powers. If Bailey and Voorhees had been constituted the agents of the defendant, with the power to buy and sell for him, but were directed not to buy on credit when they had funds belonging to him, they would have been general agents; and if they had disregarded the instructions of their principal, and actually pledged his credit while they held his funds, he would have been bound by their acts, and it would have availed him nothing to shew that they had transgressed the limits prescribed to them. In such a case, the power to purchase on credit would have existed in the agents ; but its exercise would be controlled by instructions, and dependent on circumstances not presumed to be generally known. But if the defendant, in constituting them agents, had withheld from them, under all circumstances, the authority to buy on his responsibility, or eveti to buy at all for him unless they were furnished with funds for immediate payment, they would, in my opinion, be only special agents. The evidence of Bailey is explicit, that his house never had the power to purchase on credit for the defendant.

Their mode of doing business is one that is very common. The merchant in the country sends what articles and produce he has on hand to a merchant in New-York to sell, and transmits to him his orders for such goods as he may re-' quire. He is probably aware that there are articles on his order which the merchant to whom it is directed does not usually keep; but he expects, as the correspondent has his funds, that he will make out the assortment by purchasing on his own account, and perhaps on credit, such articles as his own establishment cannot supply. No country merchant, under such circumstances, supposes that he is committing his fortune to his correspondent, by giving him an unlimited power to use his credit in purchasing goods. From the testimony in this case, taking it altogether, Bailey and Yoorhees appear to me to have been special agents, without the power to pledge the credit of the defendant.

If a special character can be given to their agency, consistently with well established principles of law on this subject, it appears to me that it should be done. Prudence on the part of principals requires that they should often make restrictions limiting their responsibility ; and when made in good faith, they should be recognized and upheld with all necessary safe guards for their support, and cautionary regulations to preserve them from perversion or abuse.

If the fact was clearly made out, that the salt was purchased by Bailey and Yoorhees on the credit of the defendant, restricted as the agency was, I should consider it an act beyond the scope of their authority, for which the defendant would not be liable. I arrive at this coricltision from a VieW of the general character of the agency as detailed in Bailey’s testimony.

It is proper to examine more minutely and critically the facts and circumstances relative to the sale of the salt, to see if there is any thing to vary the character of the transaction. The plaintiffs were informed that the salt was purchased for the defendant, and the defendant actually received it. Whether the credit was given to the defendant or to Bailey and Voorhees, is a matter left in some doubt. It would seem, from the entries in the books of the plaintiffs, that the credit was given to the defendant; another quantity sold at the same time, at the instance of Bailey and Voorhees, to Stewart, under somewhat similar circumstances, was charged to him, and not to B. and V. Bailey, however, says he gave no direction to have the salt in question charged to the defendant. He intended to buy it, and supposed he had bought it, on his own credit; he had often bought the same article of the plaintiffs for the defendant; and the previous purchases had always been on the responsibility of his house. From a conversation of the plaintiffs with one of the witnesses, after the failure of B. and V. it is quite evident they doubted the liability of the defendant. It is not so material to know to whom the plaintiffs charged the salt, as it is to ascertain to whom the facts warranted them to make the charge; for the rights of one party are not to be affected by the misapprehension of the other. If the facts relative to the sale are all before us, and there is no reason to suspect they are not, it would seem that in making the charge, on the supposition it was made against the defendant, the plaintiffs looked more to his ability to pay than to these facts. The circumstance that the salt was purchased with a design to be sent to the defendant, and that this was made known to the plaintiffs, does not, in my opinion change the features of this case. There is some ambiguity in the witness’ expression that he purchased the salt for the defendant. He undoubtedly meant to be understood that he purchased it for the use of, or to be sent to the defendant, but not on his account; for he followed this expression immediately by the declaration that he purcjlasec[ p on his own responsibility.

But the defendant had the property, and it is therefore urged that he is liable to pay the plaintiffs for it. The answer to this is two told. It appears, m the first place, that the plamtins diet not sell the property to the defendant, but to Bailey and Yoorhees: if, however, upon the question.of fact, there was any doubt, the other answer is conclusive—Bailey and Yoorhees had funds furnished by the defendant, and his order to them was to procure it with these funds. So they understood it, and nothing was then or had been previously done to authorise the plaintiffs to understand it otherwise. If the facts will at all warrant the position that the defendant sent his agents to the plaintiffs to buy the salt, it was with money to pay for it. He can therefore avail himself of the principle, that where money is given to the agent or servant to purchase goods for his principal or master, and he retains the money, and purchases on the credit of his employer, the latter is not liable, unless it can be shewn that sometimes the agent or servant has' been permitted to buy on credit, (1 Show. 95. 5 Esp. N. P. Rep. 76. Peake’s N. P. 74. Paley on Agency, 140.)

I see no reason to question the correctness of the judge’s charge to the jury, or his refusal to charge as the plaintiffs' requested. The motion for a new trial must therefore be denied.