delivered the opinion of the court.
It appears that Baxter was engaged in selling lumber -in Chicago and in its vicinity. His manner of doing business was this: He would get stock lists from such mills as he could, and then go to the manufacturers to see what sales he could make. Molner, the president of appellant, gives his understanding of what Baxter did in making sales or in taking orders for lumber: “ He (Baxter) sells for any mill that sent him a stock list. If I knew the mills I chose the mill myself from which I want the order sent to; if the lumber in the different mills is of the same kind, I leave it to Baxter; would give him an order for so much ash and let him place the order where he wanted. * * * I could not buy Page & Lyon stock from anybody else but Baxter.” Prior to this order appellant had bought lumber from appellee, in the manner above set forth, through Baxter.
For four years prior to the trial appellee had had dealings with Baxter. It paid him no salary, expenses or compensation, other than a commission upon such of his orders as it accepted. Baxter had his own office, and represented various mills. In one or two cases where the buyer complained of the measurement or of the grade of the lumber, appellee sent Baxter to effect a settlement, but be had no general authority to act for appellee.
There is no direct evidence that Baxter ever made a sale for appellee, or that he had authority so to do. His custom was to send in an order, which appellee accepted or rejected as he saw fit. He was an independent trader.
If Baxter had no right to bind appellee by his acts in making a sale, he could not bind it by any statement or guaranty he might make accompanying such sale, unless appellee had knowledge thereof or assented thereto.
It seems that appellant thought it knew where the'fault. lav in this matter, for in its letter of September 1, 1899, while continuing to assert that Baxter was the agent of appellee, it says: “You will please urge Mr. Baxter to come here and straighten the matter up, as it is entirely his error and he ought to stand the consequences.”
The title to the lumber contained in these two cars passed to appellant upon delivery to the railroad company and the sending forward of the bills of lading.
It is true that appellee did not pay the freight from the mill to Chicago, as the order directed, but the refusal of appellant to accept the lumber was not based on this omission, but was founded wholly upon the inferior quality of the lumber sent.
There being no competent evidence to show that Baxter was the agent of appellee, either to sell lumber or to guarantee its quality, the action of the learned trial judge in refusing to admit in evidence the Baxter letter was correct.
The sale in this case stands upon the order of appellant contained in its letter of August 5,1899, and the acceptance thereof by appellee. It follows that the trial court did not err in directing the jury to find a verdict for appellee.
The “ interference” of the court in the trial of the case, while annoying to counsel, in our opinion does not constitute reversible error.
The judgment of the Circuit Court will be affirmed.
Per Curiam.The petition for rehearing is denied.
The judgment heretofore entered in this cause affirming the judgment of the trial court for the sum of §296.46, will be set aside, and upon the appellee within ten days from this date entering a remittitur for the sum of $49.88, the judgment will be affirmed as to the balance, namely the sum of $246.58.