employed by wholesalers, except when varied by custom or usage in a particular business or locality.

Section 112.-SALE BY SAMPLE.-The agent of a wholesaler who carries samples with him, when he exhibits the samples to the customer, and solicits his order for the goods, warrants that the bulk will be equal to that of the sample. This is absolutely necessary as a rule of law, as well as the custom among merchants.

Section 113.-PURCHASER'S RIGHT TO RETURN GOODS. The purchaser of goods sold by sample has a right to make reasonable inspection of the goods, and if the bulk is not equal to the sample, he may repudiate the sale and return the goods. But his inspection and objection must be reasonable. If he keeps the goods, unpacked and unopened, for a long time after he receives them, his inspection will not be reasonable; and if, after inspection, he uses a part of the goods himself, or disposes of a part to others, or delays in sending them back to the wholesaler, his right to avoid liability for the purchase price will be lost. He must act promptly in inspecting the goods, and must with equal promptness return them, if he does not wish to be held for them.

BY

TRAVELING

Section 114.- COLLECTIONS AGENT.-A commercial traveler who makes collections for his house cannot, without special authority from the house, accept anything but money from the debtor.

Section 115.-GIVING CREDIT.-A commercial traveler may sell goods on credit, where that is the usage or custom of the place or business; and when a customer buys on credit from a wholesaler's agent, in accordance with a usage between them of long standing, and without notice of any change in the wholesaler's terms, the latter will be bound, even if he has instructed his agent to give no more credit.

Section 116-DECLARATIONS OF WHOLESALER'S AGENT.-When a commercial traveler approaches a customer, with or without samples of his principal's goods, he stands in the place of the principal and acts for and in his behalf. As the principal's own declarations would bind him, if he were present, so the agent's declarations within the scope of his authority, made at the time of the sale, and relating to the goods, will be binding upon the principal. So, whatever the agent of a wholesaler who is sent out to sell the goods of his principal states, as to the quantity, or quality, or condition, or price, or the time and manner of shipment, or any other fact which is material to or an inducement for the sale, it will bind the principal as though he had made the representations in person..

Section 117. - NOTICE ΤΟ WHOLESALER'S AGENT.-Notice of a fact given to the agent is notice to the wholesaler. Therefore, if the purchaser gives notice. to the agent of any fact with respect to the contract or the goods, it is notice to the wholesaler himself, and he will be bound by it.

Section 118.-FAILURE TO SHIP GOODS.-When a commercial agent solicits and receives an order for goods, and neglects to send the order to his house, or the principal refuses to honor the order, after receiving it, the wholesaler will be liable to the customer for all damages sustained by him, if the goods were ordered in good faith.

Section 119. NOTICE BY WHOLESALER OF TERMINATION OF AGENCY.-A wholesaler must give notice to his customers of the termination of an agent's authority, or he will be bound by the agent's contracts with persons from whom he has formerly solicited orders, even if made after the agent's authority has actually ceased. Where a wholesaler dismisses an agent from his employ, and revokes his authority to sell or buy, he must give notice to third parties with whom the agent has dealings; and

if he does not give notice to third parties of his revocation of the agent's authority, or unless he does what he can to make the revocation as notorious and generally known to the world as was the fact of the agency, he will be bound by the further dealings of the agent with persons who have not received notice of the agent's dismissal. As to the method of giving notice that an agent's authority has been revoked, or as to the character of notice required, the law does not prescribe any particular form of notice or method of giving it. Much will depend, in this matter, upon the prevailing custom or usage. Sometimes the notice is given by publishing in a newspaper, but more often by circular letter mailed to each of the wholesaler's customers. The latter method is to be preferred; for the wholesaler's books will usually show the names and addresses of all persons with whom the agent has had dealings, and a notice by mail may more surely reach the person intended to be notified of the revocation of an agent's authority. But whatever may be the method pursued, it must not be forgotten that actual notice of an agent's dismissal is necessary to protect his former principal from being bound by the agent's further dealing with persons with whom he formerly dealt.

Section 120.-WHOLESALER'S REPUDIATION OF AGENCY.-Circumstances occur where the wholesaler will dispute the agency altogether, and seek to repudiate the acts of one who has assumed to represent him in a transaction. In such cases, if the wholesaler does anything himself to ratify the act of the assumed agent, or accepts the result of his services, or acknowledges in any way his capacity as agent for himself, he will be bound, and his effort to repudiate the transaction will be of no avail. repudiation of the act of one who assumes to act as agent, and whose agency is disputed, must be made promptly, as soon as the wholesaler learns of the pretended agency, and must be decisive and unequivocal. There was a case in Colusa County, which was passed upon by the Supreme Court of California in 1896, which illustrates very well the

conduct which will bind a wholesaler, and what will not be considered a repudiation of an assumed agent's authority. A man named Willis, who represented himself as the agent of J. K. Armsby Co., San Francisco, made a contract with J. H. Pope, of Colusa County, for the purchase of a lot of green fruit. The contract was in writing and was signed, "J. K. Armsby Company. By Frank W. Willis, Agent." Subsequently, and before the delivery of any fruit under the contract, Pope wrote to the J. K. Armsby Co. this letter: “Colusa, Cal., May 25, 1894. J. K. Armsby Co., San Francisco-Gentlemen: I have sold my green fruit to you, and have a contract signed to that effect, signed, 'J. K. Armsby Company,' by Frank Willis, as agent. Now, what I want to know, is F. W. Willis your agent for buying green fruit, and is the contract correct? Your immediate answer and oblige Yours truly, J. H. Pope." On the next day Pope received from the general manager of the company this letter: "San Francisco, May 26, 1894. John H. Pope, Esq., Colusa, Cal. Dear Sir: We have yours of the 25th. Mr. Willis bought some apricots on our advice, but we are not aware he bought them in our name. We will handle them, however, and think there is no question on the money part of the transaction. The writer expects to visit your section within the next week or two, and will arrange the matter satisfactorily with you then. Yours truly, J. K. Armsby Co. Freeman." Afterwards a dispute arose, and the J. K. Armsby Company denied that Willis was their agent for buying the fruit, and claimed to have repudiated his agency. But the Supreme Court reviewed the facts, and said that the letter from the company was not frank, and did not answer the question put by Pope, whether Willis was the company's agent in the premises, by saying, in terms, whether he was or was not such agent; that the language used in the letter, and the assurances conveyed by it, authorized but one inference, that the contract was all right and the company would see it carried out. And the Supreme Court further said, that if the company intended to repudiate the transaction, it was its duty to do so explicitly, and in such terms

as to leave no room for doubt; and that Pope had a right to infer from the language of the letter that the contract made by Willis, instead of being repudiated, was in fact ratified by the J. K. Armsby Company; and that the company was positively and plainly informed by Pope's letter that he had a written contract signed in its name, and it was clearly the duty of the company, if it did not know the terms of the contract, to inform itself, before writing as it did, if it did not wish to be bound by the contract. It would have been a very easy thing to have asked Pope to send a copy of the contract, before replying to his letter; and not to have taken this simple precaution was negligence on the company's part, and precluded it from denying the effect of its assurances to Pope, which induced the latter to proceed and deliver his fruit under what he had a right to suppose was a valid contract. The case just referred to, like a great many others of like character, exemplifies the rule that an attempted repudiation of agency, or the contract of an agent made in the name of the principal, must be unequivocal and plain and clear, and must leave no room for a contrary inference on the part of the person with whom the agent deals. (Decided by the Supreme Court of California in the case of Pope vs. Armsby Co., reported in Volume 111, California Reports, page 159.)

Section 120a.-SALE OF SAMPLES.-A traveling salesman has no implied authority from the nature of his employment to sell the samples with which he is intrusted by his principal. Samples being essential and necessary to the performance of the salesman's work, no reasonable inference can arise that he is to dispose of them, for, if he does, he is left without available means for exhibiting the goods of his employer. A traveling salesman cannot sell his samples without express authority and instructions from his employer.