in the absence of any knowledge on the part of the purchaser that the agent was not authorized to receive payment. Having put the agent into such a position that he may appear to the world as the owner of the property, or having held him out as authorized generally to sell, it would be a fraud upon those who had paid the agent in good faith, for the principal to be permitted to assert that he was not authorized to receive payment. § 1447. Agent to sell merely or to solicit orders, without possession of goods, not authorized to receive payment.Where, however, he is not intrusted with possession, the negotiation of the sale of goods by an agent, or the fact that he is, or acts as, agent to solicit orders for goods, will not, in the absence of a controlling usage to the contrary, authorize him to receive payment therefor.1 § 1448. When traveling salesmen may receive payment.The practice of selling goods through the agency of traveling salesmen who go from place to place exhibiting samples and soliciting orders has become so universal that the question of the authority of such an agent to subsequently receive payment for the goods has become very important and has been much discussed, but the decisions have not been entirely uniform. The preponderance of the authority, however, is undoubtedly in harmony with the principles stated in the preceding section, 494. See also Howe Machine Co. v. 100; Graham v. Duckwall, 8 Bush Ballweg, 89 IIL. 318. (Ky.), 12; Abrahams v. Weiller, 87 Ill. 179; Kohn v. Washer, 64 Tex. 131, 53 Am. R. 745; Greenhood v. Keator, 9 Ill. App. 183; Kornemann v. Monaghan, 24 Mich. 36; Bernshouse v. Abbott, 16 Vroom (N. J.), 531, 46 Am. R. 789; Adams v. Fraser, 82 Fed. R. 211, 27 C. C. A. 108, 49 U. S. App. 481; Simon v. Johnson (1894), 105 Ala. 344, 16 S. R. 884; Lakeside Press Co. v. Campbell (1897), 39 Fla. 523, 22 S. R. 878; Clark v. Murphy (1895), 164 Mass. 490, 41 N. E. R. 674. 1 Janney v. Boyd, 30 Minn. 319; Brown v. Lally (1900), Minn. 81 N. W. R. 538; Butler v. Dorman, 68 Mo. 298, 30 Am. R. 795; Chambers v. Short, 79 Mo. 204; Clark v. Smith, 88 Ill. 298; McKindly v. Dunham, 55 Wis. 515, 13 N. W. R. 485, 42 Am. R. 740; Seiple v. Irwin, 30 Pa. St. 513; Law v. Stokes, 3 Vroom (N. J. L.), 249, 90 Am. Dec. 655: Higgins v. Moore, 34 N. Y. 417; Wright v. Cabot, 89 N. Y. 570; Crosby v. Hill, 39 Ohio St. that mere authority to solicit orders for goods, or subscriptions for books and other articles sold by subscription, the orders or subscriptions to be filled by the principal, implies no authority in the agent to subsequently receive payment, and payment made to such an agent will not be payment to the principal, unless the agent be in fact authorized,' or unless the principal has held him out as so authorized, or such payment is in accordance with the usage in similar cases. If, however, payment in whole or in part is to be made at the time the order or subscription is taken, authority to receive such payment will be implied.3 $1449. When payment to agent part of terms of sale. But it has been held that an agent authorized to take the order has the implied power to make terms of payment as to time and place, to the extent at least of what was customary and not extraordinary; and that where it is made one of the terms of sale that payment may be made to the agent at the purchaser's place of business, to save the expense and trouble of remittance, payment to the agent was payment to the principal. So where a traveling salesman agreed, though without authority, to receive certain goods in part payment for those sold by him, the purchaser being ignorant of his want of authority, it was held that the agreement was binding upon the principal 1 Kornemann v. Monaghan, 24 Mich. 36; McKindly v. Dunham, 55 Wis. 515, 13 N. W. R. 485, 42 Am. R. 740; Seiple v. Irwin, 30 Pa. St. 513; Clark v. Smith, 88 Ill. 298; Lakeside Press Co. v. Campbell, 39 Fla. 523, 22 S. R. 878; Brown v. Lally, - Minn. —, 81 N. W. R. 538; Clark v. Murphy, 164 Mass. 490, 41 N. E. R. 674; Simon v. Johnson, 105 Ala. 344, 13 S. R. 491, 16 S. R. 884; Crawford v. Whittaker, 42 W. Va. 430, 26 S. E. R. 516; Stuart v. Burcham, 50 Neb. 823, 70 N. W. R. 383; Chambers v. Short, 79 Mo. 204; Greenhood v. Keator, 9 Ill. App. 183; Law v. Stokes, 32 N. J. L. 249, 90 Am. Dec. 655; Butler v. Dorman, 68 Mo. 298, 30 Am. R. 795. Contra, Hoskins v. Johnson, 5 Sneed (Tenn.), 469; Collins v. Newton, 7 Baxt. (Tenn.) 269. 2 Meyer v. Stone, 46 Ark. 210, 55 Am. R. 577. See ante, § 1444. 4 Putnam v. French, 53 Vt. 402, 38 Am. R. 682; Trainer v. Morison, 78 Me. 160, 3 Atl. R. 185, 57 Am. R. 790; Hoskins v. Johnson, 5 Sneed (Tenn.), 469. who had shipped the goods to the purchaser.1 Such an agent could not, however, bind his principal by agreeing that the price should be set off against a debt due from the agent to the purchaser.2 § 1450. Notice of want of authority. It is frequently attempted to give notice to the purchaser that the agent is not authorized to receive payment by printing or writing upon the bill or invoice a warning to that effect. Actual notice of such limitation is, of course, binding upon the purchaser,' but whether such a warning can be held to be constructive notice seems to depend upon its being given such a degree of prominence that the buyer can fairly be held to have notice of it.' 1 Billings v. Mason, 80 Me. 496, 15 Atl. R. 59, Mechem's Cases on Agency, 406 (distinguishing Clough v. Whitcomb, 105 Mass. 482, and Finch v. Mansfield, 97 Mass. 89, and likening the case to Wilson v. Stratton, 47 Me. 120). to be impossible to give a purchaser such a notice. By all authorities he must be presumed to have observed these words, and to have had notice when they were so prominent on the face of the bill of goods in his possession, and in which he alone was in 2 Talboys v. Boston, 46 Minn. 144, terested as purchaser. It might as 48 N. W. R. 688. 3 Payment to an agent after actual notice not to pay will not be good. Stenwood v. Trefethen, 84 Me. 295, 24 Atl. R. 855; or after actual notice that the agent's authority has been revoked: Lewis v. Metcalf, 53 Kan. 217, 36 Pac. R. 346; Lancaster v. Knick erbocker Ice Co., 153 Pa. St. 427, 26 Atl. R. 251. See also Lamb v. Hirschberg, 1 N. Y. App. Div. 519. well be said that the contents of any written or printed notice of any kind, or for any purpose, were not presumed to have been brought home to, and to be known by, a party on his receipt of the notice." And in Putnam v. French, 53 Vt. 402, 38 Am. R. 682, the court say: "It is further insisted by the plaintiffs' counsel that the defendants were charged with notice that they must pay the plaintiffs and not Allen (the agent) by reason of the words 'payable at office' written on their bill rendered, when the last invoice was sent. The defendants did not see those words. Therefore they had no notice in fact. Should they be held chargeable with notice? The plaintiffs sent that bill without any letter, when the goods were sent, which was three months before the time of payment agreed 4 Thus in McKinley v. Dunham, 55 Wis. 515, 42 Am. R. 740, 13 N. W. R. 485, it is said by Orton, J.: "On the face of the bill sent to the defendant, and directly under his address, there appears in large, legible print in red ink, as if stamped upon it, the words 'Agents not authorized to collect.' ... If these words so legible and prominent on the face of the bill would not be notice, it would seem § 1451. How when agency unknown.-Interesting questions arise in these cases where the agent at the time acted as the ostensible principal, and the fact of the agency or the name of the real principal was undisclosed. May the agent here receive payment, and what will be the effect upon the actual principal if he does? The answer to these questions depends largely upon whether the agent has been intrusted with the possession of the goods, or otherwise clothed with the indicia of ownership thereof. If he has, and if before the purchaser upon. The defendants examined it as to items charged and amount of same, and filed it away,-never notic ing those words; and when Allen came around at about the time he was to come for the pay by the terms of the sale, they paid him the bal ance due, supposing all the while that he was, as he claimed to be, a member of the firm. In view of the obscure manner in which those words were written on the bill-head; and of the circumstances under which, and the purposes for which in other respects, that bill was sent, and of the terms of the contract as to whom and when and where payment was to be made, we do not think the defendants were guilty of such negligence, in not seeing those words, as to be chargeable with notice which they did not in fact have. It was a matter which the plaintiffs might easily have made plain. They saw fit to undertake to give the notice in an obscure way which was likely to be ineffectual. It turned out so and they should bear the consequences." And in Trainer v. Morison, 78 Me. 160, 57 Am. R. 790, 3 Atl. R. 185, it appeared that goods ordered of an agent were delivered as agreed, accompanied by a bill with the words, "All bills must be paid by check to our order or in current funds at our office," printed in red at the top. About two weeks afterward, the agent called for and received payment, giving to the purchasers a receipted bill bearing the same notice in red letters that appeared upon the bill sent with the goods. The agent embezzled the money. The court said: "The plaintiff seeks to charge the defendants with knowledge that payment was required to be made according to the terms of the notice in red letters upon the bill sent with the goods. The defendants did not see the notice, nor, taking into consideration the care ordinarily exercised by prudent men, are they at fault for not observing it. It is not so prominent upon the bill as to become a distinctive feature of it, one that would be likely to attract attention in the hurry of business and that ought to have been seen by the defendants. It would have been an easy matter for the plaintiff to have inclosed the bill in a letter of advice, calling the attention of the defendants to the fact that he was unwilling to intrust collections to his agent." See also Luckie v. Johnson, 89 Ga. 321, 15 S. E. R. 459; Kinsman v. Kershaw, 119 Mass. 140; Wass v. Insurance Co., 61 Me. 537; Law v. Stokes, 32 N. J. L. 249, 90 Am. Dec. 655. becomes aware that the assumed principal was merely the agent of another, the purchaser has, in good faith and the exercise of reasonable prudence, made payments to the agent,1 or has acquired an offset against him,2 such payment or set-off will be operative against the principal. § 1452. If, however, the agent, as in the case of a mere broker, had no such possession or indicia of ownership, or if the purchaser has acted in bad faith or had reasonable grounds to believe that the person with whom he dealt was really but an agent, then the payment or set-off cannot prevail against the claims of the real principal when discovered.3 § 1453. When authority to receive payment implied from possession of the securities.- Authority to receive payment on securities may often be implied from their possession by the agent. Thus, where a sale has been made by an agent, and a note or bond or mortgage has been taken for the price, and the security is left in the agent's possession and control, authority to make payments thereon to the agent may, in the absence of directions to pay it elsewhere, be implied. But the 1 Mechem on Agency, § 773; Ex parte Dixon, 4 Ch. Div. 133; Peel v. Shepherd, 58 Ga. 365; Eclipse Wind Mill Co. v. Thorson, 46 Iowa, 181; Tripp Boot & Shoe Co. v. Martin, 45 Kan. 765, 26 Pac. R. 424; Frame v. Coal Co., 97 Pa. St. 309; Maxfield v. Carpenter, 84 Hun (N. Y.), 450. 2 Mechem on Agency, § 773; Bernshouse v. Abbott, 45 N. J. L. 531, 46 Am. R. 789; Bertoli v. Smith, 69 Vt. 425, 38 Atl. R. 76; Baring v. Corrie, 2 B. & Ald. 137; Ex parte Dixon, 4 Ch. Div. 133; Semenza v. Brinsley, 18 Com. B. (N. S.) 467; Borries v. Imperial Bank, L. R. 9 Com. P. 38; Crosby v. Hill, 39 Ohio St. 100; Talboys v. Boston, 46 Minn. 144, 48 N. W. R. 688; Pratt v. Collins, 20 Hun (N. Y.), 126; Harrison v. Ross, 44 N. Y. Super. 230. Mechem on Agency. § 774; Bertoli v. Smith (1897), 69 Vt. 425, 38 Atl. R. 76; Miller v. Lea, 35 Md. 396, 6 Am. R. 417; Frame v. Coal Co., 97 Pa. St. 309; Wright v. Cabot, 89 N. Y. 570; McLachlin v. Brett, 105 N. Y. 391, 12 N. E. R. 17; Hogan v. Shorb, 24 Wend. (N. Y.) 458; Bliss v. Bliss, 7 Bosw. (N. Y.) 339; Nichols v. Martin, 35 Hun (N. Y.), 168; Childers v. Bowen, 68 Ala. 221; Baring v. Corrie, supra; Mildred v. Hermano, 8 App. Cas. 874; New Zealand Land Co. v. Ruston, 5 Q. B. Div. 474. 4 Haines v. Pohlmann, 25 N. J. Eq. 179; Williams v. Walker, 2 Sandf. (N. Y.) Ch. 325; Hatfield v. Reynolds, 34 Barb. (N. Y.) 612; Van Keuren v. Corkins, Hun (N. Y.), 129. |