Harrison v. Glover

Headnote

Gomtraet — interpretation of — Priee of goods in mar7cet — determined by offer — not alone by sale.

Appeal fi’om a judgment in favor of the defendant, entered upon the report of a referee.

The action was brought upon a contract under which the plaintiffs, who were manufacturers of blankets, had intrusted the same to the defendants for sale.

The action arose under a clause of the contract which provided that: “ It is hereby agreed that the blankets shall not be sold for less than those made by Dodson & Schofield, of Philadelphia, at the proper time for selling them.” The plaintiffs claimed that the blankets had been sold for less than the price at which the Philadelphia firm sold. The case has been already before the General Term, where it was held that the market-price might be proved as well by evidence of what they could be bought for, as by actual sales. (Harrison v. Glover, 11 S. O. R. [4 Hun], 121.)

The plaintiffs claimed that the defendants had sold the blankets at a less price than that at which they were authorized to sell them, and claimed to recover the difference, with interest.

Upon the second trial it appeared that, in the fall of 1870, Claf-flin & Co. applied to one Wilson, the agent of the Philadelphia firm, to ascertain the price at which he would sell two or three hundred bales of blankets. Whereupon Wilson replied that he would sell them as low as any one; that Clafflin & Co. must not buy of the plaintiffs at thirty cents, as he would sell as low or less. Clafflin & Go. then applied to defendants, and told them that Wilson had offered the Philadelphia blankets at thirty cents; whereupon the defendants sold them at that price.

The referee found that the Philadelphia blankets were not actually sold as low as thirty cents during the season, but that the offer to sell at that price was actually made.

The court at General Term say: “We think this offer of the agent of Wilson to sell Dodson & Schofield blankets at thirty cents, or less, established the price as effectually as if the offer had been accepted and the blankets delivered under it. The market-price of the blankets was established by the announcement of the price the manufacturers would take for the article. The offer was real, and the defendants acted in good faith. If the offer was made merely as a device to fix a price for' plaintiffs’ goods, less than the price called for by the agent, it would establish nothing. The referee has not found that, and I do not see how he could under the evidence. The defendants were not benefited by the sale; they sold to entire strangers. Wilson does not really deny he made the offer ; Claffiin’s agent says he did. The referee finds the offer and does not find bad faith.

I think the judgment should be affirmed, with costs.”