Merriam v. De Turk — 66 Cal. 549

Majority

p. 549

No. 8,930.

Department Two

March 31, 1885.

OTIS W. MERRIAM, Appellant, v. ISAAC DE TURK, Respondent.

Headnote

Agent—Sale oe Property when Manufactured.—An agent authorized to sell the property of his principal when manufactured, has no authority to sell before it is manufactured.

Appeal from a judgment of the Superior Court of the city and county of San Francisco.

Action to recover damages for the breach of a contract of sale. The further facts are sufficiently stated in the opinion of the court.

G. F. & Wm. H. Sharp, for Appellant.

Wm. W. Morrow, and Frederick S. Stratton, for Respondent.

The defendant authorized one Curtis to make sales of “ Searle sherry, when manufactured." He sold a quantity to plaintiff before it was manufactured, and gave an order on Searle to deliver it to plaintiff as soon as it should be manufactured. The defendant forbade • the delivery of it, and Searle refused to deliver it. It is contended by defendant that Curtis had no power to make sales of any but manufactured sherry; that he had no power to make a sale of sherry to be manufactured. The court below adopted that construction of the power, and on that ground granted a nonsuit. We think the order of the court ought not to be disturbed.

The other assignment of error is not referred to in appellant’s points and authorities, and we think the exception on which if was founded was substantially waived at the trial.

Judgment and order affirmed.