L. Scatena & Co. v. Van Loben Sels

HALL, J.

This is an appeal by plaintiff from an order denying its motion for a new trial and from such portion of the judgment as allows the counterclaim of defendant.

Plaintiff filed its complaint against defendant upon .two causes of action, one upon a promissory note for $1,000, interest and attorneys ’ fees, and the other for $542.09 for goods sold and delivered.

Defendant, by way of counterclaim, set up a claim to recover of plaintiff one-half of certain commissions charged and retained by plaintiff for the selling of certain farm produce consigned to plaintiff by defendant during the years 1906, 1907 and 1908, under an agreement, as it is alleged, whereby plaintiff promised to repay to defendant at the end of each year one-half the commissions charged by it for the selling of such produce as should be consigned to it for sale by defendant during the year.

The court found in favor of defendant upon his counterclaim and allowed the amount thereof as a credit or offset against the claim of plaintiff against the defendant. It is this action of the court that is complained of in this appeal.

1. The first ground urged for a reversal is that the evidence does not show that the agreement for a rebate of commission was the contract of plaintiff.

Whatever agreement defendant had with plaintiff for the allowance of a rebate on commission was made by him with L.

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Scatena, the president, manager and agent of plaintiff. The evidence shows that plaintiff had an agreement with the other firms engaged in handling farm produce on commission that all the commission firms should charge a uniform rate of commission. Plaintiff, in its brief, does not challenge the sufficiency of the evidence to show that L. Scatena had either actual or ostensible authority to make contracts for the consignment of produce to plaintiff, but claims that because this particular contract allowed to defendant a rebate on such commissions, such contract was not within the scope of the agency of its manager, and therefore did not bind the plaintiff. This contention, we think, puts too narrow a limitation upon the authority of the agent. He had authority to contract for the consignment of produce and necessarily to agree to the terms upon which consignments would be received. The subject matter of the contract was clearly within the scope of his agency, and it does not lie in the mouth of the plaintiff, who has received and accepted the benefit of such contract, to say that its general manager and agent had no authority to agree to the terms of the contract. Besides, the contract for a rebate was first entered into in 1902, or before such date, and it is perfectly established by the evidence that the agreed rebates were allowed and paid to defendant each year thereafter until 1906.