Parker v. Vose

The opinion of the Court was drawn up by Tenney, C. J. It does not appear in the report, that the claims of the plaintiff, as originally existing, are denied; but that the defendants had not been credited, as a payment, the value of the bark Pilot Eish, which was appropriated by the plaintiff to his own use, was a point in issue. By the contract between the parties, of March 27, 1854, the plaintiff engaged to make certain advances to the defendants, for the purpose of enabling them to build and complete the bark. And, in consideration of these advances, thus agreed to be made, and which were in fact afterwards made, the bark was to be delivered at a wharf in Boston, as soon after she should be “ launched as practicable, as the property of said Parker, as collateral security.” [59] It was agreed by both parties in the contract, if, on the arrival of the vessel in Boston, the defendants could sell her to better advantage than the plaintiff could do, they had the liberty to make the sale, provided the payment should come to the latter, for all moneys, acceptances, and all liabilities, commissions and claims against the vessel. Evidence was introduced by the plaintiff, tending to show that one of the defendants was in Boston for several weeks, after the arrival of the bark in that place, and was making efforts to sell her, but without success; and that, afterwards, the plaintiff caused her to be properly advertised for sale at auction by an auctioneer, and, at the time and place appointed, a large number of persons being present, she was struck off by the auctioneer, upon the bid of the plaintiff’s agent. Evidence was also introduced by the plaintiff, upon which he relied, that one of the defendants consented to the sale so attempted. The jury were instructed that the defendants were bound by the sale at auction, in Boston, whether they assented to the same or not. And the only question presented is, whether this instruction was correct. The contract undoubtedly shows that the parties contemplated a sale in Boston, of the bark, after her arrival, by one party or the other, the defendants having the right to, make it, in a contingency stated in the contract. No sale was made under this provision, by the defendants. The instruction to the jury treated the transaction at the time the bark was exposed for sale at auction, as a conclusive sale to the plaintiff. By the contract, the legal title in the vessel was in the plaintiff, at that time, for the purpose of obtaining, from a sale thereof, money to be applied to claims against the vessel and the defendants. The money obtained from the sale, by the plaintiff, was to discharge the defendants pro. tanto ; and, so far, they had an interest in the bark. The plaintiff cannot be treated as having acquired, at the auction, any right in the vessel which he did not before possess. The sale to him, being the owner, involves an absurdity. He had authority, under the contract, to .make the sale, after [60] the defendants had failed, under the right given to them to do so, for the benefit of the defendants and his own. He was not in a condition, under their authority in the contract to make sale for their benefit, to become the purchaser. He was interested to obtain her at the lowest price, and his duty to the defendants inquired him to obtain the greatest price, which it was fairly in his power to do. Though the sale was, in form, made by the auctioneer, the latter acted under the agency of the plaintiff, and his agency cannot be regarded as substituted for that which the plaintiff had, under the defendants. It was still his duty to use all proper means to obtain, at the sale, the full value of the vessel. The two interests, which an agent has to sell property, and to become the purchaser thereof, are so incompatible, that the law does not allow them to be united in the same person. This principle is well established by the authorities cited by the counsel for the defendants. The interest of the plaintiff, to purchase the vessel at a low price, is not balanced, in law, by the supposed interest to obtain as much as possible, from the sale, of his claim against the defendants. Whatever remained of his claim, after deducting the receipts arising from the sale, was still outstanding and unpaid. The occurrences at the auction could have no other effect than to tend to show, in some measure, the value of the bark in the market. How far this would be shown, would depend, perhaps, upon other facts and circumstances in evidence. The value of the vessel was a question of fact, to be settled by the jury, from all the proofs in the case, and the value, as tested by the bid of the plaintiff’s agent, which was followed by its being struck off to him, is not conclusive upon the defendants, as a rule of law, and, we think, the instructions being unqualified, were erroneous. According to the agreement of the parties, the action must stand for trial. Rice, Hathaway, Appleton, Cutting, and Goodenow, J. J., concurred.