Lilienthal v. German American Brewing Co.

Houghton, J.: In the year 1904 a salesman óf the plaintiffs, who are copartners, bargained with defendant for the purchase of a carload of hops of the growth of 1905, to be delivered after January 1, 1906, at twenty-seven cents per pound. By mutual memoranda, signed by the plaintiffs and defendant, this bargain was confirmed. Upon the salesman’s return to plaintiffs’ place of business, he reported to the plaintiffs that the president of the defendant had been largely instrumental in enabling him to sell two other carloads of hops and that , the plaintiffs owed some kind of compensation therefor. Thereupon one of the plaintiffs told the salesman that he himself was capable of looking after the matter and that he left it entirely to him to-do what he thought best. On the salesman’s next visit- to the defendant’s place of business, in adjustment and satisfaction of this obligation of plaintiffs to defendant, by memorandum in writing in plaintiffs’ name signed by himself, he modified the contract for the purchase of the carload of hops, by providing that the purchase price should be at the [630] market price at the time of delivery, not to exceed, however, twenty-seven cents per pound. - • When the time of delivery arrived the . price of hoj>s was much below twenty-seven cents. The defendant offered to take them- at the then market price, and- the plaintiffs insisted that if delivered they should' be at twenty-seven cents per pound; The defendant refused to-accept them at -that price, claiming'that the contract had been properly modified, and. the plaintiffs brought- this action to recover the damages which they claim to have sustained. The court refused to permit the; defendant to go to the jury upon the question-as-to whether or not the salesman had authority to modify defendant’s contract, or, if he -had no authority, whether plaintiffs had. ratified his act of modification, and submitted to -them only the question as to how many pounds of hops a carload contained, instructing them,, when that was ascertained, to find ■ a ver- . diet for plaintiffs for the-difference between.the market price proven and twenty-seven cents. We think the court erred in refusing to submit to the. jury the question of the salesman’s authority to modify the contract; and if he had no such authority, whether .plaintiffs did not ratify his act, There was no dispute that the plaintiffs told the agent to settle the matter of the. compensation, of defendant for aiding in the sale of two carloads of hops in'. such manner as he saw fit.'■ Instead of agreeing to .pay á sum of 'moneys or arbitrarily reducing the price of the carload of hops which defendant had bargained for, he agreed that the defendants need pay only the market price prevailing at. the time they were to he delivered. ■ 'Under the then condition of the hop market it might -properly be said that- this was a reasonable bargain and one of wdiich-the'plaintiffs could not complain.- .Indeed, on the proof - as it stood .upon the trial the-defendant might well have asked for a direction of a verdict in its favor. In addition to this undisputed, authority given by the -plaintiffs to the salesman to adjust the .defendant’s claim against them, the salesman testifies that he reported to the plaintiffs "what he had done, at some'period before any dispute arose.;, and the' secretary of the defendant testified that in. Uovémber, 1905, he called-plaintiffs’ attention to the fact that defendant’s order for hops had been modified,. Qn thi§ latfer occasion plaintiffs insisted upon settling [631] other matters of difference between themselves and the defendant before taking up the modification to which their attention was then called. If plaintiffs knew what their agent had done, and made no timely objection to it, the jury might find that they ratified his act, although it was originally unauthorized.. The court erred in refusing to submit to the jury the'questions requested by the defendant. The judgment and -order must be reversed and a new trial granted, . with costs to the appellant to abide the event. Patterson, P. J., Ingraham, Lattghlin and Clarke, JJ., concurred.