Aggeler, Morrison, Hansen Co. v. A. C. Dauphiny & Co.

CHIPMAN, P. J.

Action for the value of certain goods, wares and merchandise alleged to have been sold and delivered by plaintiff to defendant. The cause was tried by a jury and plaintiff had the verdict for $336.30, on which judgment was entered. Defendant appeals from the judgment on bill of exceptions.

The defense on which defendant relies is set out in its answer and may be thus summarized: That about August 26, 1904, the United Breeders Company and plaintiff, through their agent, one Andrews, gave to defendant the exclusive agency for handling and selling an article called Baum’s Stock Pood in the city of Eureka, Humboldt county, and territory north of said city in said county, and “let the said defendant have one half carload of said Baum’s Stock Pood to sell,” and as inducement to defendant to handle said products said Andrews as such agent “agreed that he would move (i. e., find sale for) all of said half carload that said

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defendant would send for”; that relying on said promises and that “defendant should be the exclusive agent for the handling and selling of said Baum’s Stock Food (in the territory named), until all said merchandise in its possession was sold or removed,” and that said Andrews as such agent “would move the entire half carload of said Baum’s Stock Food,” defendant “sent for a half carload of said Baum’s Stock Food in the form of paper writing and manner as made and dictated by said Andrews, the agent of said Breeders Company and plaintiff’s, and that said stock food was thereafter delivered to the said defendant under the terms as aforesaid, which is the same half car of merchandise mentioned and referred to in plaintiff’s complaint”; that it was agreed that said Andrews “should sell the same, and as long as any of said Baum’s Stock Food and products was in its possession that the defendant should remain and be the exclusive agent for handling and selling the same in the said territory as aforesaid.” It is then averred that the said Andrews did not sell all of said stock food as he agreed to do, but that defendant sold all it could so sell; that without defendant’s knowledge or consent plaintiff and said United Breeders Company through their agent, Andrews, and in violation of said agreement, established another agency in said territory and placed said stock food on sale therein with their newly appointed agent, and thereupon defendant notified the said United Breeders Company and plaintiff that defendant still held some of said products and offered it to them and called upon them to take it away; that defendant has paid for all of said merchandise that it has ever sold and holds the residue subject to the order of said United Breeders Company and plaintiff.