Majority
p. 230CHARLES C. HARRISON, et al., Plaintiffs and Respondents, v. WILLIAM R. ROSS, et al., Defendants and Appellants. Before Speir and Sanford, JJ. Decided November 4, 1878.
Headnote
L Broker to sell and purchase.1. Sold note.
(a) “Collect at our office.” Construction or phrase.
A sold note signed by the brokers stated the parties on whose account the sale was made, and then contained the following : ‘1 Send invoice and bill of lading to our office. Collect at our office.”
HELD,
not authority for payment by the vendees to the brokers.
p. 231
The defendants appealed from a judgment entered upon a verdict of a jury under the direction of the court, and from an order denying a motion for a new-trial upon the minutes.
The plaintiffs are sugar refiners, doing business in Philadelphia. They sue to recover a balance of $2,981.52 and interest, for two hundred and fifty barrels of crushed sugar, claimed to have been sold by them to the defendants, doing business in Montreal, Canada.
The answer alleged, in substance, that pursuant to an offer by Dayton & Co., to procure and furnish to them sugars, at certain prices specified by them, Dayton & Co., to be paid for on delivery, they gave Dayton & Go. an order to procure and ship to them a certain quantity of sugar at the prices named ; that pursuant to said order Dayton & Go. did ship to them two hundred and fifty barrels of crushed sugar, for which they, on the receipt thereof, paid to Dayton & Co. the purchase price thereof; and then proceeded: “ And these defendants, upon information and belief, aver that the sugars so shipped to them by said Dayton & Go. are the same sugars referred to in said complaint, and were purchased by them from said plaintiffs, and that by the terms of said purchase the same were to be paid for to said Dayton & Co. at their office in the city of New York, as the agents of said plaintiffs, within thirty days after the same were so purchased ; but these defendants allege and aver that at the time they received and paid for said sugars, they had no knowledge that the same had been so purchased from said plaintiffs, and that they paid for the same at the office of said Dayton & Co., in the city of New York, within thirty days after the same were so purchased by them.”
It appeared on the trial that the sugar was sold
p. 232
through Dayton & Co., brokers, in the city of New York, and that the contract of sale was as follows :
“New York, April 30, 1875. Sold for account of
Messrs. Harrison, Havemeyer & Co., To Messrs. W. R. Ross & Co.,
250 bbls. stand, crushed sugar,
at 11% 4—30 days.
For export.
Mark: A
vv
V Montreal.
Await directions.
Ship by
Clyde’s Line via Providence, and send invoice and bill of lading to our office. Collect at our office.
“DAYTON & CO.”
It also appeared that about June 9, 1875, plaintiffs wrote the defendants the following letter :
S-l o Í* r £ O <D O ¡Z¡ <43 o H N <1 A
‘ ‘ Franklin Sugar Refinery,
“ Harrison, Havemeyer & Co.,
“ Office, 101 South Front Street,
“Philadelphia, June 9, 1875.
“ Mess. W. R. Ross & Co.,
“Montreal, Canada.
“Dear Sirs:
“ The contract rendered us by Mess. Dayton & Co. calls for a settlement of our bills in 30 days, at their office in New York.
“We have not as yet been paid for your bill 5 May. Will you please put Mess. Dayton & Co. in funds—if you have not already done so—and instruct them to accept our draft for amount now overdue %
“ Yours truly,
“HARRISON, HAVEMEYER & CO.
“Botan.”
p. 233I. The evidence at the trial justifies the theory that the defendants dealt with Dayton & Co. as principals; that the latter were permitted by the plaintiffs, either designedly or through their negligence, to sell the sugar in question as their own and to collect the price from the defendants; and that the defendants, having paid Dayton & Co. for the sugar, discharged their liability therefor. II. The expression in the sale note, ‘ ‘ collect at our office,” can only be interpreted to mean that the price of the sugar should be collected by Dayton & Co. at their office in ¡New York, and not by the plaintiffs in Philadelphia. It is analogous to the case of a note payable at bank. The plaintiffs themselves so interpreted it. It is also manifest from the tenor of Mr. Frazier’s testimony, and of the plaintiffs’ letters to Dayton & Co., that they never expected to collect the moneys due for their sugar, sold by Dayton & Co., themselves. III. The theory, upon which the plaintiffs apparently proceeded at the trial, that Dayton & Co. were the agents solely of the defendants, was wholly unwarranted by the testimony. IV. The defendants have paid for the sugar, not only in accordance with the contract of sale, but in compliance with the wishes and instructions of the plaintiffs expressed in the letter of June 9 ; and to require them to pay it again is repugnant alike to justice and to the law of the case. If any mistake has occurred, it is not the fault of the defendants, who performed their whole duty in the premises, but the
There was a great deal of other testimony, which is not material, as it has no bearing on the propositions contained in the head-note.
Johnson & Qantine, attorneys, and id Ql Cantine, of counsel, for appellants:
p. 234result of the plaintiffs’ negligence in omitting to notify them in season not to pay Dayton & Co. I. The sugar was sold by the plaintiffs to the defendants. Dayton & Co. were employed by the defendants to purchase the sugar. They merely acted as brokers in the transaction. II. Before the defendants placed any funds in Dayton & Co.’s hands they knew that the plaintiffs were the sellers of the sugar. This is quite immaterial. They knew that somebody was the seller of the sugar ; that they were the purchasers ; and that they could only discharge themselves by payment. In point of fact, however, they did know that the sugars were purchased from the plaintiffs before sending any money to Dayton & Co. III. The remittances by the defendants to Dayton & Co. were not intended to be on account of the plaintiffs’ bill. IV. The only question in the case is whether the provision of the contract, “ send invoice and bill of lading to our office, collect at our office,” had the effect of making the plaintiffs chargeable for money received by Dayton & Co. from the defendants. This cannot be successfully maintained. 1. The invoice referred to was the bill of the plaintiffs. According to the contract it was a bill against the defendants. The provision that it should be sent to Dayton & Co.’s office meant simply that the plaintiffs were to send there for payment of the bill. The bill of lading was to be sent there. That is, the sugar was to be delivered to the defendants at the office of Dayton & Co. Sending the bill there did not constitute payment. 2. A person residing in Boston buys of Messrs. Tiffany &• Co. a bill of jewelry, and directs his bill to be sent to his New York agent. Does that constitute payment of the bill?
Mann <6 Parsons, attorneys, and John E. Parsons, of counsel; for respondents:
p. 235
Do Messrs. Tiffany & Co. thereby accept the responsibility of the agent ? In such a case the agent does not even assume the responsibility of payment. Neither did Dayton & Co. do so in this case. 3. And so, again, though the contract contains the expression, “ collect at our office,” the deposit by the defendants of money there did not pay the bill. “ Collect ” means “ obtain the money,” ££ receive the money.” The plaintiffs were to collect. They were to receive the money. Unless they did so receive it, it was not collected by them. A promissory note is very frequently made payable at the bank in which the maker keeps his account. Even that does not constitute payment (Hill v. Place, 5 Abb. Pr. N. S.18, special term, affirmed by general term). No question of negligence is involved. The plaintiffs pressed Dayton & Co. They failed. 4. It was a matter of indifference to the plaintiffs where the bill was to be paid ; that which was essential was, that it. should be paid. They acquiesced, therefore, in the provision of the contract that the bill should be collected at Dayton & Co.’s office. This assumed that the defendants would see that the bill was paid there, and they were required to do so. In accordance with this construction of the contract the plaintiffs, on June 9, 1875, wrote to the defendants, informing them that the bill had not been paid, though they had drawn upon Dayton & Co. for payment, and requesting the defendants to put Dayton & Co. in funds, and to instruct them to accept the draft; in other words, to instruct them to pay the bill. If Dayton & Co. had accepted such a draft, that would not constitute payment unless it was specifically so agreed (Claflin v. Ostrom, 54 N. Y. 581 ; Roberts v. Fischer, 43 Id. 159). 5. The defendants may maintain that this letter authorized the remittance of funds by the" defendants to Dayton & Co. on the plaintiffs’ account. This is not so : First, because the letter follows the provisions of
p. 236the contract, which requires the defendants to put Dayton & Co. in funds, and to see that they pay the plaintiffs’ bill: and, Second, because no money was remitted to Dayton & Co. by the defendants upon or after the receipt of this letter.
[After reviewing the evidence and arriving at the conclusion that upon the undisputed evidence and facts the sale was made through Dayton & Co., who acted as brokers for both seller and buyer, that defendants had knowledge before they placed any funds in the hands of Dayton & Co., that the plaintiffs were the sellers of the sugar; that the remittance to Dayton & Co. was not intended to be on account of plaintiff’s bill; and that plaintiffs, in fact, received but $1,000 from defendants, for which due credit was given, proceeds :] The only question in the case is whether the provision of the contract— “send invoice and bill of lading to our office, collect at our office,”—had the effect of charging the plaintiffs for money received by Dayton & Co. from the defendants. The invoice mentioned here is the plaintiffs’ bill sent to the defendants with the shipment of the sugar. The contract informs the defendants that the sale was made on account of the plaintiffs to them, and the bill is made against them and calls for payment: The defendants were not authorized to pay to Dayton & Co., although payment was to be made at. their office. The general rule is, that a broker employed to buy or sell, has no authority to receive payment. The exception to the rule prevails where the broker is clothed with the indicia of authority to receive payment, especially where the principal is not disclosed (Russell on Fac. and Brokers, 48 Law Lib. 68-110; Cassel v. Thornton, 3 Car. & P. 352 ; Higgins v. Moore, 34 N. Y. 417 ). The defendants were apprised by the contract and the bill received from the plaint
p. 237
iffs, that the goods were bought from the plaintiffs, and payment was due to them, to be made at the office of the brokers. The main defense relied on was: that at the time the sugars were received and paid for they had no knowledge that the same had been purchased from the plaintiffs. The contrary was affirmatively proved by the testimony of one of the defendants, and what is still more conclusive, the payments made to Dayton & Co. were made before the time of payment had expired, and were made on an arrangement with them by which a currency price had been converted into a gold price, and after the receipt of the plaintiffs’ bill by the defendants.
The judgment and order should be affirmed with costs.
Sanford, J., concurred.
Cases cited
- Claflin v. Ostrom 54 N. Y. 581 p. 235
- Higgins v. Moore 34 N. Y. 417 p. 236