Booth v. . Bierce

Mason, J. As the order reversing the judgment in this case and granting a new trial does not state that it was reversed upon questions of fact, the section of the Code declares, that it shall not be deemed to have been reversed upon questions of fact, and consequently, in this court we are, for the purpose of review, to assume the facts as found by the *466 referee, and are only permitted to review the questions of law. Assuming, as we must, from the findings of the referee, and as was assumed by the Supreme Court, that there was no meeting of the minds of the parties upon the price to be paid for the rye, 1 am not able to see how the order appealed from can possibly be sustained. There- could be no contract as to price, unless the minds of the parties met upon the subject and fixed upon a price. The fact, that the plaintiff supposed he was selling his rye at six shillings per bushel, does not entitle him to recover that price of the defendants, if the defendants understood and believed when they received it, that there was no price fixed upon it, and that they, consequently, were only liable to pay -the market price, which the referee finds to be fifty cents per bushel. The principle applied to this case in the Supreme Court, as appears by the opinion printed in the case, has no application, and cannot be applied to this case, upon the facts found by the referee, or upon those assumed by that court, in disposing of the case. The complainant charges a sale of the rye by the plaintiff to the defendants, upon an agreed price. The réferee has found, that there was no price agreed upon, and that Babcock had no authority from the defendants to contract at all; that his agency was manual, mechanical, and no more. The fact, that plaintiff told Babcock, the teamster, who brought a written order from the defendants to the plaintiff for the rye, that he must have six shillings per bushel, and that he wás directed to inform the defendants so when he got home with the first load, and that he omitted to inform them, added to the fact, that when he returned for the second load he stated an untruth, in informing the plaintiff that he had told the defendants and communicated to them the pricey and that they expressed themselves satisfied with the price, cannot make a bargain on the part of the defendants as to price. Neither does it present a case where the principle* that if one of two parties must suffer, it should be the one who employed the agent, by whom the fraud, which occa *467 sioned the injury, was practiced. (Dunl. P. Ag. 302, 303 ; 2 Hills, 451; 3 Hills, 268; 1 Metcalf, 203; 37 Barb. 463.) The action is not in fraud but in assumpsit, to recover upon the contract as for a fixed and agreed price, fifty per cent higher than the real value of the rye. The plaintiff, when he discovered the fraud practiced upon him by Babcock, the defendant’s teamster, might have rescinded the sale, demanded his rye, and sued the defendants in trover, if they refused to give it up. In such a case, however, he could only recover the value of his rye, and the interest thereon from the time of the conversion. There is no principle, however, applicable to the facts, found by the referee in this case, upon which the defendants can be held liable to pay six shillings per bushel for this rye as upon a contract price agreed upon, when the fact is found, that they never made any such agreement. It is not the case of a contract made by an agent, who assumes himself to contract as to price, and who claims to have general authority to bind his principals, and whom the parties have, apparently, clothed with such authority, but have in fact, given him instructions not to pay so much. In fact, Babcock did not assume to contract with the plaintiff as agent of the defendants, nor did the defendants rely upon any agreement made with him, nor did he make any agreement. The defendants sent this written order to the plaintiff, inclosed in a sealed envelope, saying to him: Please to send us a load of rye, and we will settle with you for the same at any time that you are down here. The plaintiff delivered the rye to Babcock, saying, that he would not sell it less than seventy-five cents per bushel, and directing him to tell the defendants so. He takes the rye to the defendants but does not tell them, and when he goes for the second and last load he is asked by the plaintiff what the defendants say as to the price, and he replies with a falsehood, by saying, that they expressed themselves satisfied; and then, the plaintiff delivers the second load. The defendants receive the rye, as they suppose, upon their own order, without any agreed price. There is no principle of law, which, upon these facts, will hold the *468 defendants to an agreement to pay six shillings per bushel, when the fact stands in the case, found by the judgment of this court, that Babcock had no authority from the defendants to contract at all in regard to the rye. This agency was merely manual, to take the rye from the plaintiff to the defendants, if he would let it go on the defendant’s written order. The order appealed from must be reversed, and the judgment of the referee affirmed. Judgment affirmed.