Bass Dry Goods Co. v. Granite City Manufacturing Co. , 119 Ga. 124 ( 1903 )

Lamar, J.

The court charged: “ If you believe from the evidence . . that Arnold . . sent Brown to the plaintiff with instructions to sell the goods in question to them at a certain price, or at figures not below a certain price, you would be authorized to find that Brown was the special agent of Arnold, and, as between Arnold and plaintiff, the plaintiff would be bound to take notice of the instruction given Brown by Arnold.” This was error. Assuming that the goods were not on hand, and that therefore Arnold was principal, it appeared that he had written Brown, “ While in Atlanta call on Bass Dry Goods Company, and try to close them the following pants.” -As Brown had been appointed traveling salesman, it could hardly be claimed that this letter amounted to a suspension of his general powers as such. But even if it be treated as creating a special agency to sell particular goods to a particular person, the purchaser was only required to examine his authority. This the purchasers did when they read the letter. They were not bound by private instructions not included in the writing, but were justified in assuming that he could fix the price, that being an essential element in the contract of sale. While a general agent has broader powers than one selected to do a particular act, the authority in both cases must be construed to include all necessary and usual means for effectually executing it. Where one is appointed to sell a particular article to a particular person, £his confers on the special agent authority to agree on the price — otherwise the appointment is illusory, and not real. Civil Code, § 3023 ; Barclay v. Hopkins, 59 Ga. 562; Holman v. Ga. R. Co., 67 Ga. 595.

Whether the firm or Arnold was the principal was in dispute; but that being once settled, the terms of the sale were in writing, and parol evidence was inadmissible to vary the written instrument, and to convert what appeared to be an absolute sale into one conditioned upon Arnold’s approval. Bass Co. v. Granite City Co., 113 Ga. 1142 (2); Civil Code, § 5201. This disposes of the objections to the evidence set out in numerous grounds of the motion for a new trial. Of course the defendants could attack the contract as having been procured by fraud, and so much of this evidence could be considered as went to sustain a valid plea attacking the sale because of alleged misrepresentation. But as there must be a new trial, we shall not pass on the question as to whether the verdict is contrary to law; or whether the statement by Porter in the presence of Joel, that he knew the price would be satisfactory to Arnold, was a false representation of a fact, or the mere expression of a positive conclusion, based on the supposed desire of Arnold to dispose of the goods. Nor can we on this hearing undertake to determine whether the allegation in the plea that Joel said to Brown, “ I saw Arnold since he gave you the prices on these goods, and Arnold told me he was willing to dispose of them at the price you have billed them in the contract,” was sustained, in view of Brown’s several statements that he did not mean to say that plaintiffs or their agent had specifically told him that Arnold would be willing to sell the merchandise at $3.75 per dozen. This issue must be passed on by the jüry under a proper plea, and the charge of the court adjusted thereto.

The plaintiffs demurred to the amendment to the plea, on the ground that it could not be filed without the affidavit that it was not interposed for delay, as required by Acts 1897, p. 35, amending the Civil Code, § 5057. When “the circumstances of the case or substantial justice between the parties require it,” the court has power to allow such amendment without attaching the affidavit; but the discretion must be based on some facts justifying its exercise. If the defendant is absent, and on the trial some new fact is discovered requiring an amendment, he might well permit it to be filed without such affidavit. But in this case three of the defendants were in court, and there was no reason why they should have been relieved from making the oath required of all defendants who set up new defenses after the first term. Civil Code, § 5052. Judgment reversed.

All the Justices concur. ■