Brager v. Levy

Thomas, J., delivered the opinion of the Court. This suit was brought on the common counts in assumpsit to recover the contract price of goods claimed to have been sold by the appellees to the appellant. The defendant, appellant, pleaded the general issue plea, and the trial in the Court below resulted in a judgment for the plaintiffs from which the defendant has appealed. The evidence shows that the defendant conducted a large department store in Baltimore City, and' in the conduct of lhat business employed a “buyer” for each department of the store.

One of the duties of the “buyer” was to make out orders for goods required in his department and submit them to the manager or proprietor for his approval or confirmation. The “buyer” was not authorized to purchase goods, but his authority in that connection was limited to selecting and making out the orders for the goods needed ⁵⁵⁶ in his department and submitting them to the manager or proprietor, for his approval and signature. Accordingly the “buyer” of each department was supplied with a book containing blank orders of the following form : “Salesman..................Date......:..191 . Messrs........................................

Time for Delivery: Terms: Albert A. Brager, Baltimore. Ship via........................... .For Department................Dating........... All goods sent in excess of, or different from this order, will be returned at expense of shipper. All goods not sent with first shipment to be prepaid.

Lot LTo............:........................ Total Amount........................ This order is not valid unless signed by the Firm or Manager.” These books were arranged so that three impressions or ■copies could be made of each order, and according h> the rides and custom of the defendant after an order is signed by the manager or proprietor one copy is sent to' the manufacturer or person from whom the goods are ordered, and another copy to the receiving clerk of the defendant. Goods are received by the receiving clerk according to the copy of the order delivered to him, and no goods are accepted by the store unless there is an order for the same signed by the manager or proprietor.

This method of purchasing goods had been established and strictly observed by the defendant for a number of years and was never departed from, and goods were never accepted by the defendant imless they were ordered by the manager or proprietor, except in some instances where the amounts of the purchases were under ⁵⁵⁷ twenty-five dollars. The evidence also shows that it is the uniform and established custom of department stores in Baltimore City to require orders made out by the “buyers” of the various departments to be confirmed or approved by the managers or proprietors. In May, 1911, the defendant employed William S. Weinstein as “buyer” for the boys’ and children’s clothing department of his store, and he was given one of the order books referred to and used it in making out orders for goods needed in his department. The plaintiffs, who were engaged in business in Hew York, knew Weinstein, and in May, 1911, wrote their agent and traveling salesman, Samuel Markowitz, to go to see Weinstein.

Markowitz had never sold goods io or had any dealings with the defendant and had never sold goods in Baltimore. He went to the defendant’s store to see Weinstein on the 31st of May, 1911, and he states that Weinstein introduced him to Carey, the assistant “buyer” for the department in which Weinstein was engaged, and told him that Carey was the “head man.” Later on the same day Weinstein and Carey met him by appointment at the Howard House, where he exhibited to them his samples and Weinstein gave him a written order for goods amounting to $1,098.00, to be shipped to the defendant September 1st, 1911. Weinstein and Carey say that when the order was made out and given to Markowitz, they explained to him that the order was not binding on the defendant until it was signed or confirmed by the manager or merchandise man of the defendant or by the defendant. Markowitz says that nothing was said to him “about confirmation of the order”; that when he obtains an order for goods he sends it to the plaintiffs, and that they send samples of the goods indicated by the numbers in the order to the “buyer” of the purchaser of the goods with a letter thanking him for the order.

While Weinstein was on his vacation about the middle or last of August, 1911, he went to the store of the plaintiffs in Hew York, looked at the samples of the goods he had ordered and ⁵⁵⁸ told plaintiffs to ship all that they had ready on or as near the first of September as they could, and to' ship the balance “as soon thereafter as possible.” On September 2nd, 1911, - the plaintiffs shipped to the defendant a part of the goods ordered by Weinstein, to the amount of $893.50. When they arrived in Baltimore the defendant refused to' accept them, and wrote the plaintiffs as follows: “Baltimore, Md., Sept. 5, 1911. Messrs, levy & Markowitz, 718 Broadway, Hew York City. Gentlemen:— We have declined to receive a shipment of goods from you today as our office knows nothing of this purchase.

It is an inviolate rule with this house to require all orders to be confirmed in the office. Hence, you should not have shipped us any goods until you received such confirmation. Yery truly yours,' A. A. Bbager." The evidence further shows that the order given by Weinstein to Markowitz. was never signed or approved by the manager or the defendant, and that neither of them knew that the order had been given until after the goods arrived. Under the pleadings it was incumbent upon the plaintiffs to prove an acceptance of the goods by the defendant, or that they had been shipped to the defendant in compliance with the terms of an order or agreement signed by the defendant or his authorized agent. 1 Poe, Prac. & Pl., secs. 96-97; Art. 83, sec. 25, Code of 1912.

As we have said, the evidence shows that Weinstein, who gave the order for the goods, was not authorized by the defendant to purchase them. There is some confusion and contradiction in the testimony of Weinstein as to what he understood his authority to he, but taking his testimony as a who^e we think it is clearly to the effect that he knew at the time he gave the order in question that he had no power to hind ⁵⁵⁹ the defendant without the signature or approval of the defendant or his manager, for he repeatedly states that when he made out the order he told Markowitz that it was not binding until it was confirmed. The appellees contend, however, that the mere fact that he was called “buyer” for the department in which he was employed was sufficient to warrant the plaintiffs or their agent in assuming that he had full authority to order the goods, and that the defendant cannot rely upon any limitations upon his authority of which the plaintiffs were not advised. It is said in Lister v. Allen, 31 Md. 543 , speaking of the general authority rising from a general employment in a specific capacity, such as factor, broker, attorney, etc.: “A general authority of this kind empowers the agent to bind his employer by all acts within the scope of his employment, and that power cannot be limited by any private order or direction not known to the party dealing with the agent * * * But the responsibility of the principal to third persons is not confined to cases where the contract has been actually made upon his express or