Lindow v. Cohn

SHAW, J.

The facts as they appear from the record are: That one Peiser, as traveling salesman and soliciting agent of Meyerstein Company, plaintiff’s assignor, sold to defendant a lot of merchandise, consisting of corduroy trousers, and

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on behalf of his principal made covenants of warranty as to the quality of the goods. Some six weeks after the goods had been received and paid for by defendant, Peiser again called upon defendant, soliciting further orders for his house, when defendant for the first time made complaint, stating that the corduroy trousers were not as he had represented them; that every pair thereof which defendant had sold had been brought back to him, and that he, defendant, had been compelled to reimburse the purchasers thereof. Whereupon Peiser admitted that the goods were not as warranted, and said to defendant that he wanted his trade, that he would do all that he could to make it right and told defendant to return the goods and charge his principal, the Meyerstein Company, with the goods shipped back, plus freight charges and the amount of defendant’s loss in making adjustments with his customers. Defendant then gave Peiser an order on Meyerstein Company for the bill of goods, the purchase price of which is herein involved. The order was transmitted to Meyerstein Company, who in due course of time shipped the goods as per order. The defendant, pursuant to his agreement with Peiser, returned to Meyerstein Company the unsold portion of the first bill of goods, and after deducting the price of the goods so returned, together with freight charges and the amount which defendant had paid to his customers in making adjustments with them, sent to Meyer-stein Company his check for the balance, in settlement of this last bill of goods. The Meyerstein Company refused absolutely to accept the return of the goods, and by letter stated: “We return you your check, shipping receipt and- Wells, Fargo & Co. receipt. The goods that you shipped back will lay at the railroad at your expense, as we positively refuse to accept them.” The assignee of Meyerstein Company thereupon brought suit for the amount of the last bill of goods, and judgment was rendered for defendant, from which and an order denying his motion for a new trial, the plaintiff appeals.

The court found that Peiser, as agent of Meyerstein Company, had authority to make the agreement for the return of the corduroy trousers and settle and allow the amount of damages claimed by defendant, as a condition of defendant giving the second order for goods, and found further that Meyerstein Company ratified the acts of its agent. There is nothing in the record disclosing the extent of Peiser’s author