receiving the same time from the agent the following paper: 'Coldwater, April 29, '78. "Mr. Isaac M. Selover gives his order for one copy of our history, for which he agrees to pay on delivery all the proceeds of his office as justice from now till the delivery of said history. "Eberts & Abbott, per Schenck.' "The plaintiffs claim that the history was duly delivered, and they demanded the subscription price, repudiating the undertaking of the agent to receive anything else, as being in excess of his authority and void. The defendant relies on that undertaking, and has brought into court $4.27 as the amount of his fees as justice for the period named. This statement of facts presents the questions at issue so far as they concern the merits. "It may be perfectly true, as the plaintiffs insist, that this undertaking of the agent was in excess of his authority; that the defendant was fairly notified by the entries in the book of that fact, and that consequently the plaintiffs were not bound by it, unless they subsequently ratified it. Unfortunately for their case, the determination that the act of the agent in giving this paper was void does not by any means settle the fact of defendant's liability upon the subscription. "The plaintiffs' case requires tnat they shall make out a contract for the purchase of their book. To do this, it is essential that they show that the minds of the parties met on some distinct and definite terms. The subscription standing alone shows this, for it shows, apparently, that defendant agreed to take the book and pay therefor on delivery the sum of ten dollars. But the contemporaneous paper given back by the agent constitutes a part of the same contract, and the two must be taken and considered together. Bronson v. Green, Walk. Co. 56; Dudgeon v. Haggart, 17 Mich. 275. Taking the two together it appears that the defendant never assented to any purchase except upon the terms that the plaintiffs should accept his justice fees for the period named in full payment for the book. If this part of the agreement is void, the whole falls to the ground, for defendant has assented to none of which this is not a part. When plaintiffs discovered what their agent had done, two courses were open to them; to ratify his contract, or to repudiate it. If they ratified it, they must accept what he agreed to take. If they repudiated it, they must decline to deliver the book under it. But they cannot ratify so far as it favors them and repudiate so far as it does accord with their interests. They must deal with the defendant's undertaking as a whole and cannot make a new contract by a selection of stipulations to which, separately, he never assented." Question 212: What was the agent's authority in this case? How was it exceeded? Why was there not ratification? § 209. (Agency, Sec. 25.) Ratification by bringing suit. Case 213. Bailey v. Partridge, 134 Ill. 188. Facts: Plaintiff's traveling salesman sold the samples with which he had been provided, and received the price thereof, appropriating it to his own use. Plaintiff contended he had no authority to make the sale, but brought suit for the price thereof based on the sale. Point Involved: Whether suit on an unauthorized contract made by an agent is a ratification of such contract. MR. JUSTICE CRAIG: "But it may be said that Holmes was not empowered by the plaintiffs to sell the goods, -that he merely held the samples as a means to solicit orders. A sufficient answer to this position is, that the acts of plaintiffs since the sale may be regarded as ratification. Where the owner whose goods have been sold without authority, sues the purchaser for the amount of the contract price for which the goods were sold, the sale, although unauthorized, will be regarded as ratified. "In the case under consideration, as soon as plaintiffs learned of the sale they made out a bill according to the contract price, presented it to the defendants, and demanded payment for the goods. This was followed by the present action in assumpsit to collect the amount for which the goods were sold. If therefore, Holmes made the sale without direct authority, these acts of the plaintiffs after full knowledge of the sale, may be treated as a ratification of the sale made by Holmes. The case then stands in this position: Holmes had possession of the goods, claiming the right to sell; he called on defendants. and they bought the goods; he delivered the goods, collected the pay, and gave defendants a receipt acknowledging full payment. Plaintiffs first deny authority to sell, but by their acts concede the power of sale, but deny authority to collect for the goods. This they can not do. The power of sale or the sale without authority, subsequently ratified, carried with it the implied power to receive payment. Had the sale been repudiated by the plaintiffs, and an action brought to recover the goods, a different question would arise. But that course was not pursued." Question 213: When the agent sold the goods, what did his principals do? Why was ratification of the sale, a ratification of the collection of the price? What courses could the plaintiffs have pursued to protect themselves? (Note: It must not be inferred from this case that if an agent has authority to sell he has also authority to receive the price. He has implied authority to receive the price in some cases of sale, and in some others, not. In this case he had authority to receive the price if he had authority to sell, according to the rules developed hereafter. Therefore, if the principals ratified his authority to sell they ratified the payment.) § 210. C. Results of Ratification (Agency, Sec. 26.) Ratification cures original defect. (Note: When the principal having actual or constructive notice of the facts, ratifies, he is thereafter bound, as though there had been previous authority, to the third person on the contract, and to the agent for his compensation. He cannot revoke the ratification.) § 211. (Agency, Sec. 27.) Ratification is irrevocable. (See note in the last section.) PART II THE DUTIES AND LIABILITIES ARISING Chapter 27. The Duties and Liabilities of the Principal to the Agent. Chapter 28. The Duties and Liabilities of the Agent to the Principal. Chapter 29. The Duties and Liabilities in Contract of a Disclosed Principal to Third Persons (the Authority of the Agent). Chapter 31. Principal's Liability for Torts of Agent. The Duties and Liabilities of the Agent to the Third Person. CHAPTER 27 THE DUTIES AND LIABILITIES OF THE § 212. The agent's right to compensation. § 213. When compensation considered earned. § 214. Agent's rights to damages where principal wrongfully revokes. Agent's right to compensation when he himself is guilty of breach of contract. § 215. § 216. Agent's right of compensation where he abandons service without his own fault. § 212. (Agency, Sec. 28.) The agent's right to compen sation. Case 214. Huber Mfg. Co. v. Watson, 19 Ky. L. R. 864. Facts: Suit to recover certain commissions alleged to have been earned by Watson as agent for Huber Mfg. Co. in selling threshing machines and engines. Watson was employed under a written contract which gave him a certain commission, payable as payments were made, except it was provided "no commission to be allowed or paid on sale of goods where foreclosure proceedings at any time become necessary." Watson made a sale of certain engines to Gallagher Bros. and a mortgage was taken to secure the purchase price. This mortgage was foreclosed. The present suit is upon certificates which were issued to Watson when the sale was made, payable to Watson upon the same dates that the installments on the engine fell due. Point Involved: That the agent's right in compensation is determined by his contract. PAYNTER, J.: The only question in this case is whether or not Watson is bound by the contract which he made with his principal. It is written in unmistakable terms that he is not to be paid a commission for his services if it becomes necessary for the company to institute foreclosure proceedings. Whether it was a wise contract for him to make is not for us to determine. He was charged with the responsibility of determining that question for himself before it was executed. The company knew that proceedings to enforce its lien in the courts were necessarily expensive. The com pany wanted him (the agent) to make sales to solvent persons, and those who would pay it without the necessity of instituting legal proceedings to enforce payment. The provision in question was to the advantage of the company in that it made the agent careful as to whom he made sales. When the agent agreed to accept the compensation provided for in the contract he took the risk that his right to it would fail if foreclosure proceedings became necessary." Question 214: What was the written agreement in this case as to compensation? Was it binding? |