Majority
p. 139Darby and others v. Pettee and another.
Headnote
The defendants, merchants in New York, signed and delivered to an agent of the plaintiffs, merchants in Liverpool, the following order to be executed by them.
p. 140(Before Duer, Campbell, and Bosworth, J.J.) February 22. April 30, 1853.
“ 500 tons Scotch pig iron of the Glengarnock, Summerlee, Govan, Cambro, Calder, Dundyvan, Coltness, or Gartsherrie brands, to be purchased and shipped immediately at current rates and bargains made for freight as low as they can make it."
Held, that the order, although not addressed in writing, was rendered valid by its delivery to the agent and its acceptance by him.
Held also, that the order was a direction to the plaintiffs to purchase from others as agents, and not evidence of an agreement to purchase from them as owners.
Hew trial granted for the purpose of ascertaining whether plaintiffs purchased the iron which they shipped under the order or furnished the same from their own stock.
This was an action to recover damages against the defendants for their breach of a contract relative to the sale and delivery to them of 500 tons of Scotch iron.
The complaint set forth that the plaintiffs, Francis Darby, Abraham Darby, and Alfred Darby, on the 1st of February, 1849, were and ever since have been, and now are partners in business established, and carrying on business in Liverpool, in that part of Great Britain, called England, under the name and firm of The Coalbrookdale Company, and that the said defendants, at and during the times aforesaid, were partners in business, trading and doing business in the city of New York, under the name and firm of Pettee and Mann; and that said defendants, on or about the said first day of February'aforesaid, at the said city of New York, under their said firm name, made and signed an order or contract in writing, for certain goods and merchandise therein mentioned, and then and there delivered the same to Septimus Crookes, at the city of New York, then and there being the general agent and factor of said plaintiffs, to be by him forwarded to said plaintiffs for their execution and performance, which order or contract was and is in the words and figures following:
“ 500 tons Ho. 1 Scotch Pig Ron of the Glengarnock, Summerlee, Govan, Cambro, Calder, Dundyvan, Coltness, or Gartsherrie brands. Do not want Gartsherrie if it comes higher than the other brands. To be purchased and shipped immediately at current rates, and bargain made for freight as low
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as they can make it. Our object is to get the iron to this market as soon as possible, believing that the price of freights and iron will keep advancing for a time.
(Signed) “ Pettee & Mark.”
“ Feb. 1, 1849. New York.”
That the said Septimus Crookes, as such agent and factor of said plaintiffs, received said order or contract, and without delay and in due and reasonable course of communication, forwarded the same to the said plaintiffs at Liverpool aforesaid, by whom the same was there received on or about the twentieth day of the said month of February; and the said plaintiffs thereupon, in consideration of the said order and request of the said defendants, undertook to execute the same, and without delay, and in due and reasonable course of communication, advised the said defendants thereof in and by a certain written letter or contract in the words and figures following:
“New York, March 12,1849.
“ Messrs. Pettee & Marr,
“ New York:
“Dear Sirs,—Your order for 500 tons Pig Iron has been received in Liverpool, and entered at the following prices, say £3 Is. 6d. at Liverpool, but if shipped from the Clyde (which will be done if possible) the price will be £3 and 2s. 6d. charges. The brands will be 1st class, most likely Gartsherrie or Glengarnock. The C. B. Dale Eefined Bars ordered with the above are entered at £8 and 2s. 6d. charges, which with the pigs are subject to the usual credit—4 months from date bill lading.
“Bespectfully yours,
(Signed) “ Septs Crookes, Agt.
“C. B. Dare, Co.”
Which said letter was received by the said defendants at the City of blew York, on or about the day on which it bears date.
That the said plaintiffs, in consideration of said order of said defendants, and in performance of the same and of said under
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taking of said plaintiffs to execute the same, did forward and ship from Liverpool aforesaid, to their said agent and factor at the City of New York, Septimus Crookes, for delivery to the said defendants, five hundred tons of Ho. 1 Scotch Pig Iron of the Glengarnock, Summerlee and Gartsherrie brands, in the quantities and by the ships, at the times following, that is to say: the said plaintiffs at Liverpool shipped, on or about the fourteenth day of March, in the year one thousand eight hundred and forty-nine, on board the ship “ Blanchard,” 155 tons of the “ Glengarnock” brand, and the same arrived at the city of New York, on or about the ninth day of the month of May following; on or about the seventeenth day of the said month of March, on board of the ship “ E. & E. Perkins,” 101 tons of the “ Glengarnock” brand, and 60 tons of the “ Gartsherrie” brand, which arrived at the city of New York on or about the fifth day of the said month of May; and on or about the twenty-second day of said month of March, on board of the ship “ Caleb Grimshaw,” 186 tons of the “ Summerlee”' brand, which arrived at the city of New York on or about the ninth day of the said month of May.
That the said shipments and each of them were made by said plaintiffs as early after the receipt by them of said order of said defendants, as in the course of trade was reasonable and practicable, and that the bargains for the freight of said iron upon each of said shipments, were made by said plaintiffs as low as they could be made by them, and at reasonable and proper rates and prices.
That upon the arrival of said iron at the city of New York, the said .agent and factor of said plaintiffs, and in their behalf, tendered and offered to .deliver the same to said defendants, and particularly so tendered and offered in writing, and by the following letter :
“ New York, May 11th, 1849.
“ Messrs. Pettee & Makn,
“ New York :
“ Dear Sirs,'—The quantity of pig iron, say (500) Five Hundred Tons, ordered by you on the 1st February, from the Coalbrookdale Co., is now ready for delivery, of which
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please take due notice, as it is liable to be sent to the public , stores. “Yours respectfully,
(Signed) “ Septimus Cbookes.”
Which said letter was sent to, and received by the said defendants, on or about the said day of its date.
That at the time of the receipt by the said plaintiffs, at Liverpool, of the said order of said defendants, the current rates of price, and the market value of the said iron of the description in and by said order required, at Liverpool aforesaid, was three pounds seven shillings and six-pence sterling, lawful money of the realm of Great Britain and Ireland, at and upon a credit of four months from the date of shipment ; and that by the said order of said defendants, and the acceptance thereof by said plaintiffs, the said defendants bargained for, and bought of said plaintiffs, and said plaintiffs bargained and sold to said defendants, said five hundred tons of iron so required, in and by said order of said defendants, and so shipped by said plaintiffs at Liverpool, and forwarded to, and arriving at New York as aforesaid, and thereupon the said defendants undertook, and became and were liable to the said plaintiffs to accept said iron on its arrival as aforesaid, and to take and pay for the same at the rates and price last aforesaid.
That though the said plaintiffs tendered, and offered to deliver said iron to said defendants as aforesaid, yet the said defendants did not accept, or receive, or pay for the same, or any part thereof, but refused and neglected so to do, and expressly advised and informed the said agent and factor of said plaintiffs at the city of New York, that they would not accept, or receive, or pay for the said iron, or any part thereof.
That upon and after such neglect and refusal of said defendants, and such notice thereof to the said agent and factor of said plaintiffs, their said agent and factor in their behalf, gave express notice to said defendants, that he should sell said iron on account of said defendants, and charge any loss upon such sale, and all costs, charges and expenses concerning said iron and such sale thereof, to said defendants, and that he gave such notice both verbally and in and by a certain written letter, in the words and figurés following:
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u New York, May 14th, 1849.
“ Messrs, Pettee & Mass,
“ New York :
“ Dear Sirs,—Referring to my note of the 11th inst., I have now to advise you that I shall place the five hundred tons of pig iron ordered hy you from the Coalbrookdale Co., in the hands of a broker for immediate sale, at the market price ; and any loss that may occur on such sale I shall debit to your account, as well as all duties, freights, and expenses of cartage, storage, &c.
“Yours very respectfully,
(Signed)
“ Septimus Crookes,
“ Per Charles Corremos, Att’y.”
Which said letter was delivered to, and received by said defendants, on or about the day on which it bears date.
That after giving such notice last aforesaid to said defendants, and on or about the eighteenth day of May, in the year one thousand eight hundred and forty-nine, said plaintiffs, by their said agent and factor, sold said quantity of said iron, received by said ship “ Blanchard” as aforesaid, for account of said defendants, and that the net proceeds of said sale were the sum of one thousand eight hundred and thirty-five dollars and fifty-six cents, as shown by and upon schedule A, hereunto annexed; that on or about the thirtieth day of the same month of May, the said plaintiffs, by their said agent and factor, sold said quantities of said iron, received by said ships “ E. & E. Perkins” and “ Caleb Grimshaw” respectively, for account of the said defendants, and that the net proceeds of said quantity of pig iron by said ship “ Caleb Grimshaw,” upon such sale, was the sum of one thousand eight hundred and forty-five dollars and fourteen cents, as shown by and upon schedule B, hereunto annexed; and the net proceeds of said quantity of said iron by said ship “ E. & E. Perkins,” upon such sale, was the sum of one thousand seven hundred and sixty-seven dollars and sixty-three cents, as shown by and upon schedule C, hereunto annexed. That such sales, and each of them, were made in the ordinary and usual manner, according to the custom of the iron trade in the city of New York, and that the net proceeds of
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said sales were the true market value of said iron in the city of New York at the time thereof, and that such sales were made as soon after the said refusal of said defendants to accept said iron as was reasonable or practicable, without a sacrifice of said iron by a forced sale thereof.
That the amounts due to the said plaintiffs from the said defendants, under their said contract for said iron, were as follows, that is to say: for said quantity by said ship “ Blanchard,” two thousand six hundred and sixteen dollars and twenty-nine cents, due on the fourteenth day of July, in the year one thousand eight hundred and forty-nine; for said quantity by said ship “ E. & E. Perkins,” two thousand seven hundred and seventeen dollars and thirty-two cents, due on the seventeenth day of the same month; for said quantity by said ship “Caleb Grimshaw,” three thousand one hundred and thirty-nine dollars and twenty-six cents, of which the said defendants had notice; and that after the said sales of said iron by said plaintiffs for account of said defendants, and on or about the twentieth day of September, in the year one thousand eight hundred and forty-nine, said plaintiffs made up an account of the amount due said plaintiffs, and rendered the same to said defendants, and demanded payment thereof; that a copy of said account is hereto annexed, marked schedule D, and the same justly and truly states the amount due said plaintiffs on the twentieth day of September aforesaid, from said defendants, that is to say, the sum of three thousand and seventy-nine dollars and twenty-seven cents, and that said amount still remains wholly due and unpaid; wherefore said plaintiffs demand judgment against said defendants for the sum of three thousand and seventy-nine dollars and twenty-seven cents, with interest thereon from the twentieth day of September, in the year one thousand eight hundred and forty-nine.
It appeared from the schedules annexed that the balance due to the plaintiffs was the sum for which they demanded judgment.
The answer of the defendants took issue upon all the material allegations in the complaint, and denied that they had ever made any contract with the plaintiffs for the purchase of iron valid and effectual within the statute of frauds. The
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issues made, the pleadings were tried, before Mr. Justice Sandford and a jury on the 22d February, 1852, and on the trial the witnesses on the part of the plaintiffs proved substantially all the material facts set forth in the complaint.
The following order in writing addressed by the agent Crookes to the plaintiffs was also given in evidence.
“ The Coalbrookdale Co. will please purchase, and ship to my order, for account of Pettee & Mann, New York, 1000 tons Ho. 1 Scotch pig iron of the following brands: Glengarnock, Summerlee, 'Govan, Cambro, Calder, Dundyvan, Coltness, or Gartsherrie, the latter preferred, if at same price as other brands. To be purchased and shipped immediately, at current rates. The lowest possible rate of freight to be obtained. Shipments from the Clyde would be preferred, invoice and bills lading to S. Crookes. Insurance will be made on this side.
(Signed) "S. Ceookes.”
This order was dated February 6,1849, and Crookes, who was examined as a witness, stated that the insertion of 1000 instead of 500 tons was his mistake.
It did not appear from any of the testimony or evidence upon the trial whether the plaintiffs had purchased the iron which they shipped, after they received the order from their agent, or had furnished the same from a stock then belonging to them. The fact was left wholly uncertain.
The jury by consent found a verdict for the plaintiffs for $3600, subject to the opinion of the court upon a case, with liberty to turn the same into a bill of exceptions, and to the court to dismiss the complaint. The verdict, if sustained, to be subject to adjustment.
W. M. Evarts, for the plaintiffs,
moved for judgment in their favor upon the verdict, and rested the motion upon the following points and authorities.
I. The plaintiffs proved their whole case, as stated in the complaint, and must have a recovery in accordance with the verdict, unless the complaint be demurrable.
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JI. The order of defendants of February 1st, 1849, and the notice of acceptance of the order and undertaking to execute it, in the plaintiffs’ letter to defendants, of March 12, 1849, constitute a complete contract in writing, signed by the parties. It was a contract of bargain and sale of 500 tons of pig iron, at £3 7s. 6d. per ton at Liverpool, and was the ordinary case of contract, made by letter of proposal, on one part, and of undertaking, on the other part. (Mactier v. Frith, 6 Wend. 105 ; Downer v. Thompson, 6 Hill, 208 ; Eliason v. Henshaw, 4 Wheat. 225 ; McCullock v. The Eagle Insurance Company, 1 Pick. 283 ; Adams v. Lindsell, 1 B. & Ald. 681; Long on Sales (Rand’s Ed.), 183.
m. If the contract were of an agreement to purchase and ship on the part of plaintiffs, and of defendants .to accept and pay for, the rule of damages and recovery would be precisely • the same. The foreign factor, to purchase, buys in his own name, and upon his own credit; he has the possession and control of the property, and a lien for his advances and commissions.
IY. The absence of commissions, however, shows that the relation between plaintiffs and defendants was of vendors and vendees. The order of defendants, given under same date, to Beeh Kunhardt, was an employment on commission, to purchase and ship iron to defendants; the order to defendants was an absolute order of so much iron.
Y. The tender, refusal, and notice of resale, entitled the plaintiffs to resell on defendants’ account; the sale by brokers, the usual mode of selling iron in this market, fixes the plaintiffs’ damages from the defendants’ breach of contract. (Crockes v. Moore, 1 Sandf. Sup’r Ct. Rep. 297.)
YI. The defendants’ evidence was inadmissible; a special purchase of the defendants at Glasgow is not proper evidence to contradict the market price at Liverpool, established by the plaintiffs’ testimony. If admissible, it is ineffectual against the conclusive evidence that the prices charged the defendants by plaintiffs, were at or within the “ current rates,” on receipt of the defendants’ order at Liverpool.
YH. The verdict should be adjusted at $3,518.60, being the amount shown on schedule D, with the deductions mentioned
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afterwards in the bill, and interest from date of account rendered, to the date of verdict.
C. O'Conor, for the defendants,
insisted that the complaint ought to be dismissed upon the following grounds.
I. The various papers, acts, and conversations spread over the case, .cannot be misinterpreted, ingeniously dovetailed together, and the compound so construed as to create, by inference, an agreement on the part of the defendants, to purchase from the plaintiffs the iron in question, (a.) Such an inference would be directly contrary to the plain terms of the written evidence, and wholly unsupported by any just view of the facts proven. 1. The letter of acceptance from the plaintiffs’ agent, dated March 12, 1849, does not intimate that they intended to supply the order from their own stock. 2. If such an inference could arise, the defendants never assented to this new proposal, and consequently there was no agreement. (Mactier v. Frith, 6 Wend. 103 ; Tucker v. Wood, 12 Johns. 191 ; Bruce v. Pierson, 3 Johns. 534 .) (5.) The goods in question being, of greater value than $50, the want of a writing subscribed by the defendants, expressing a contract to pinchase, and of any payment of the price or acceptance of the goods, is fatal to the claim in this aspect. (Davis v. Shields, 26 Wend. 360 ; Parker v. Wilson, 15 Wend. 360 ; Cammeyer v. United G. Church, 2 Sand. Ch. R. 248, 249.) (c). The order is void by the statute of frauds, as an agreement to buy; because it contains no indication whatever, by which the intended seller could be ascertained. (Story on Sales, § 257; Champion v. Plummer, 4 Bos. & Pul. 252; Laythoarp v. Bryant, 2 Bingh. N. C. 736; 10 Bingh. 383; 2 B. & Cresw. 627; 5. B & Cresw. 583; 13 Johns. 301 .)
H. The order or contract on which this action is founded is not an. agreement, to purchase iron from the plaintiffs, but at most only an employment of the plaintiffs, or a proposal to employ them to purchase iron for and on account of the defendants.
HI. An agent or factor to buy. or sell for his principal cannot buy from or sell to himself; this is an. universal principle.
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(Michoud v. Girod, 4 Howard’s U. S. R. 553 to 560; Davoue v. Fanning, 2 Johns. Ch. R. 252, cited in 4 Howard, at p. 646; see cases of Agents, cited 4 Howard’s U. S. R. 554; 1 Hovenden on Frauds, p. 146, and the cases cited in Notes K. and L.; Att'y Gen'l v. Cochran, Wightwicke, 14; Massey v. Davis, 2 Vesey, jr., 320; Dunlap’s Paley on Agency, p. 33, and notes: Van Epps v. Van Epps, 9 Paige, 241; Hays v. Stone, 7 Hill, 135 ; S. C. in error, 3 Denio, 580 .)
IY. The order was widely and wilfully departed from, to the great prejudice of the defendants. 1. The goods were shipped to and in the name of the plaintiff’s agent, instead of being shipped, as required by the order, to the defendants themselves, which delayed the defendants in making sales for fifty days. (Case, fol. 72; Smith’s Merc. Law, 499, 500, ch. 12, § 3.) 2. The plaintiffs were unreasonably dilatory in making the shipments ; they improperly mingled the goods intended for defendants with others in the shipments and freight accounts, and their charges are excessive.
The principal points raised and discussed on the argument, were these:—
I. That there was no evidence of a contract, or if there was evidence, the contract was void, not being in writing, and subscribed by the defendants.
II. That the order or contract was not an agreement to purchase iron of the plaintiffs, but only an employment of the plaintiffs to purchase iron for the defendants, and that it did not appear that the plaintiffs had made any such purchase, and therefore could not recover.
As to the first point, we are all of opinion that this is a legal and valid order, and binding upon the defendants. It was not necessary that it should be addressed. It was delivered to the agents of the plaintiffs. The case of The Union Bank of Louisiana v. Coster (1 Sand. S. C. R. 566, affirmed in Court of Appeals, 3d Coms. 205), is an authority that the absence of an address or designation in writing, of the party to whom a proposition of contract is made, does not render the contract void under the statute of frauds. This proposition and acceptance we deem sufficient.
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As to the second point: The defendants’ order or proposition was for 500 tons of iron, &c., “ to be purchased and shipped immediately, at current rates,” and as showing how the agent, Crookes, himself understood the order, he says, in his letter to plaintiffs forwarding the order: “ The Coalbrookdale Co. will please purchase and ship to my order, &c.” The rule contended for by the defendants is well settled, that an agent or factor to buy or sell for his principal, cannot buy from or sell to himself. (--- v. Girod, 4 How. U. S. R. 553 to 560; Heys v. Stone, 7 Hill, 135 , and same case in Court of Errors, 3 Denio, 580 .)
It does not satisfactorily appear what the facts are, whether the plaintiffs purchased the iron, or furnished it from their own stock. If purchased, we think the fact should be made to appear, and if proved, the plaintiff would be entitled to recover. If, on the other hand, the iron was furnished from their own stock, the defendants would be entitled to a dismissal of the complaint.
Where an agent or factor sells to a purchaser from himself, it is not sufficient that it is made to appear that the prices paid or charged were the current rates in the market. The contract set up in such cases cannot be enforced, not because the principal has been injured, but because it is against public policy. In this case, on a careful examination., it will be found that the other 500 tons of iron, purchased by the defendants, and forwarded from Glasgow, and the evidence in reference to which was put in by the defendants, when difference in freight and commission are added, must have been within a small portion of the price charged for the iron in question. Conceding that the iron in question was furnished by the plaintiffs from their own stock, the defendants were not sufferers, as it appears from other evidence that the price charged was the current ruling price in the market. Still, in the view we take of the law, the plaintiffs are bound to show that they made the purchase of the iron in question, and were not themselves the sellers, and to -enable them to give this evidence there must be a new trial. Costs to abide the event.
Cases cited
- Eliason v. Henshaw 4 Wheat. 225 p. 147
- Mactier's Administrators v. Frith 6 Wend. 103 p. 148
- Bruce v. Pearson 3 Johns. 534 p. 148
- Williams v. Kent 15 Wend. 360 p. 148