
    Flower City Plant Food Company, Appellant, v. George Roberts, Respondent.
    ■ Contract far the sale of merchandise — indorsement changing its terms, made by an agent of the vendor on the copy retained by the vendee—when the vendee has notice, that such indorsement is unauthorized by- the vendor.
    
    In an action brought to recover the purchase price of goods sold and delivered by the plaintiff to the defendant, it appeared that the defendant, at the solicitation of the plaintiff’s agent, signed a written order for the merchandise ip question. The order contained the following provisions: “Positively no Goods on Consignment,” “ Terms; 120 days, less 5 per cent, off cash 10 days,” “ I agree that this order shall not be subject to countermand.” Immediately above the defendant’s signature was the following: “ Our agents are noti allowed to vary from printed terms of this contract.” Underneath the defendant’s signature was the following provision signed by the agent: “I guarantee this order to be sold according to contract.’^
    At the time the defendant signed the order, the plaintiff’s agent made a copy of it and indorsed thereon the following statement: “ Further, that at the expiration of 4 months, if Mr. Roberts has not disposed of the bill, we will take back or sell the same, so that he has no risk or cost.
    “FLOWER CITY PLANT FOOD CO.,
    S. R. Baker.”
    The order signed by the defendant was thereupon transmitted to the plaintiff and the copy made by the agent was left with the defendant. The plaintiff shipped the merchandise specified in the order to the defendant, who subse • quently sold one dollar and forty-nine cents’ worth thereof. At the expiration of the 120 days specified in the written order thé plaintiff, having up to that time no knowledge of the indorsement made by the agent, demanded payment of the' bill, which demand was refused by the defendant on the ground that the bill was not yet due.
    It did not appear that the agent made any misrepresentation to the defendant at the time he made the indorsement on the copy left with the defendant, or that the defendant supposed that such indorsement had also been made on the copy transmitted to the plaintiff.
    
      Held, that the indorsement on the copy of the order left with the defendant, if effective, was a clear nullification of the contract signed by the defendant, and that the defendant had direct notice that the agent’s authority to act for the plaintiff was limited to the terms printed in the written order which the defendant was asked to sign;
    That, as matter of law, the defendant would not be allowed to plead the indorsement made by the agent as a defense to the contract which the defendant signed;
    That, conceding that the indorsement made: by the agent was binding upon the plaintiff, the defendant, on his own showing, was liable to the plaintiff for the sum of one dollar arid forty-nine cents, and that the plaintiff should, at least, ■have had judgment for that amount.
    Appeal by the plaintiff, the Flower City Plant Food Company, from a judgment of the County Court of Warren county in favor •of the defendant, entered in the office of the clerk of the county of Warren on the 5th day of November, 1902, affirming a judgment of a justice of the peace in favor of the defendant.
    The plaintiff is a domestic corporation, doing business in Rochester, N". Y. The defendant is in the business of buying and selling hay, straw, flour, feed and grain in Glens Falls, N. Y. On. or about ¡November 12,1901, at the solicitation of the plaintiff’s agent, Baker, the defendant signed and delivered a written order for certain merchandise, of. which the following is a copy :
    
      “Positively n<> Goods on Consignment.
    “ Flower City Plant Food Co.,
    
      “ Rochester, N. Y., U. S. A.
    “ Sold to George Roberts.
    “ Town or P. O. Glens Falls,
    “ Railroad. Station. “ “
    
      “ County of Warren,
    “ State, N. Y.
    
      “ Terms: 120 days, less 5 per cent, off cash 10 days.
    
      “ I agree that this order shall not be subject to countermand.
    “ D. Excelsior Stock Food. “3 2 lb. package, per doz. $2.50 7.50 “2 4 lb. pck., 4.00 8.00 “ 1 7 Bags $6.60 6.60 100 lb. Bbl. EGG-0 Poultry Tonic & Egg Producer. “ 2 28 oz. Trial packages per doz. $2.00 4.00 “ 2 O. K. Pa. Anti-Louse, 2.00 4.00 * * * 30.10
    “ Our agents are not allowed to vary from printed terms of this .contract.
    “ Purchaser, George Roberts.
    
      “ I guarantee this order to be sold according to contract.
    “ S. R. BAKER, Agent.
    
    
      “ Flower City Plant Food Co.”
    At the time he signed such paper, the agent made a copy of it, except that he did not sign the defendant’s name opposite the word “ Purchaser.” On the back of each was indorsed as- follows:
    “ Free With This Order.
    “6 2 lb. packages Excelsior (Stock) Food.
    <ig 4. u i< • <1 <i «
    “2 7 “ bags “ « ' “
    “ 6 28 oz. pck. Egg-O.
    “6 1 lb. “ Anti-Louse.
    “ 1 doz. 8 oz. Plant Food.
    ■ “ With the usual printed matter and freight to Glens Falls.”
    
      On the back of the copy so made by the agent was then indorsed by him the further statement, viz. :
    
      “ Further, that at the expiration of 4 months, if JVIr. Roberts has not disposed of the bill, we will take back or sell the same, so that he has no risk or cost.
    “FLOWER CITY PLANT FOOD CO.,
    “ S. R. Baker.”
    The order signed by the defendant was thereupon delivered by him to the agent, Baker, who subsequently sent it to the plaintiff, ■and the copy so made made by Baker was left with the defendant.
    The plaintiff promptly shipped to the defendant the merchandise so ordered by him and specified therein. • The defendant received the same, and subsequently sold one dollar and forty-nine cents worth thereof.' At the expiration of the 120 days, payment for the bill was demanded by plaintiff, and refused by defendant, on the ground that it was not yet due. The plaintiff did not know that the indorsement last above stated was upon the copy left with ■defendant until it learned the same from defendant after the demand for payment had been made.
    This action was brought in a Justice’s Court for the purchase price of the goods so ordered and delivered. That court rendered a judgment for the defendant. On appeal by plaintiff to the County Court such judgment was affirmed, and from such judgment of affirmance this appeal is taken.
    
      Daniel J. Finn, for the appellant.
    
      T. W. McArthur, for the respondent.
   Parker, P. J.:

The defendant declines to pay for these goods on the ground that they were not delivered and received under a contract of purchase and sale, but under what his counsel, in his points upon this appeal, terms a “conditional sale, or rather a.consignment;” and to sustain that theory he insists that the statement indorsed on the back of the copy left with him by the agent was a part of the contract which he made with the plaintiff.

The paper which he signed begins with the following statement: “ Positively no Goods on Consignment.” A short distance below are printed the terms of payment and the agreement that this order shall not be subject to countermand. Immediately over the place where he was required to sign, and so that it was in plain view and necessarily became a part of the contract, was printed this statement : “ Our agents are not allowed to vary from printed terms of this contract.” Immediately under the defendant’s signature was a printed statement for the agent to sign, and which he did sign in this case, viz.:' “ I guarantee this order to be sold according to contract.”

There was, therefore, over the signature of the defendant a complete contract that, if the plaintiff would send him the goods therein named, he would pay the prices therein stated at the expiration of 120 days, less five per cent if paid in 10 days. There was also his further agreement that he should not be at liberty to countermand the order when once delivered to the agent, and also, in substance, that the agent had no authority to make any other or different terms, and particularly that he had none to let him have any goods on consignment.

Such was the contract signed by the defendant, and such was the only one which he delivered to the agent, and under which the plaintiff acted when it shipped the goods. The indorsement on the copy left with the defendant, if operative, is a clear nullification of the contract so signed. Instead of being a purchase and sale, upon the terms therein specified, it is a mere consignment of the goods to the defendant, to be sold for the plaintiff. At least, such is the clear effect of it; and I am at a loss to understand upon what theory it can be claimed to be a part of the contract with the plaintiff. Certainly, in the face of the provisions in the contract which the defendant signed, he had no right to assume that Baker acted for the plaintiff in thus varying the terms of such contract. He had direct notice that Baker’s authority to act for the plaintiff was limited to the terms printed in the order which he was asked to sign. If he was not willing to contract with the plaintiff upon those terms, he could not contract with it at all through Baker ; and when he signed and permitted Baker to send to the plaintiff that printed order, he must be deemed to have contracted with the plaintiff to that extent and no more. Whatever was his purpose in signing such a contract with the plaintiff, and then receiving; from Baker an entirely different one, it is not important to determine. But it is clear that he had no right to consider the paper that he received from Baker as binding upon the plaintiff, or as being any part of the contract he had made with it; and, in my opinion, as matter .of law, he cannot be allowed to plead that paper as a defense to the contract which lie in fact did make. He was not deceived by the agent. There is no proof that any representation whatever was made to him, and indeed, in the face of the writing he signed, no representation whatever could have deceived him. The paper which he did sign was not accompanied by any such modifying agreement, and by it the pláintiff evidently was the party deceived. The defendant does not even claim that he supposed the modifying contract was indorsed on the one he signed. He seems to have made a cleai: contract with' the plaintiff to purchase the goods in question, at the prices and upon the terms therein stated ; and the collateral agreement made with Baker, but not with the plaintiff, is insufficient to change it. The plaintiff should have recovered upon that contract, and, therefore, the judgment for the defendant should be reversed.

Moreover, concede that the indorsement made by Baker was binding upon the plaintiff,'on the defendant’s own claim he was liable to the plaintiff for the sum of one dollar and forty-nine cents, being the value of such of the goods received as he had sold within the four months. That amount, under the terms of the contract, as he claims it to have, been, was due and owing, to plaintiff. This judgment is a bar to its ever recovering that amount. ' Evidently it is erroneous in that respect, and for that further reason it must be reversed. It is said that defendant lias always been ready to pay that amount. If so, he should have offered upon the trial that judgment go against him for that amount. Wé- canndt sustain a judgment against plaintiff that clearly should -have been in his favor.

The judgment of the justice and of the County Court must be reversed, with costs in both courts and of this appeal;

All concurred.

Judgment of County Court and óf Justice’s Court reversed, with.costs in both courts and of this appeal.  