Lewis v. Greider

By the Court, Johnson, J. Upon the facts found by the referee Coryell was not a partner with the plaintiffs, in the barley purchased by him for them. He was their agent merely, depending for the measure of his compensation upon the amount of profits realized by the plaintiffs from the transaction. (3 Kents Com. 33.) Even if he was interested in the amount which might be recovered in the action, he was not necessarily a party, not being part owner of the article sold. The contract was properly between the plaintiffs and the [638] defendants, and although Coryell was, in a certain sense, beneficially interested in the contract, the action was properly brought in the name of the plaintiffs without joining him. (0ode, § 13.) The refusal of the defendants either to pay the money,give security or do any other act in fulfillment of the contract, gave to the plaintiffs the right to sell the barley on the defendants’ account and hold -them responsible for the deficit in the price! ' (1 Parsons on Cont. 446.) And it was not necessary for the plaintiffs to give the defendants notice either of the time or place of sale. (Pollen v. LeRoy, 30 N. Y. Rep. 549.) They did give general notice of their intention to sell, and that was enough. The law in such a case constitutes the vendor in possession of the goods the agent of the vendee, for the purpose of such sale. As such agent he must act in good faith, and take proper measures to secure as fair and favorable a sale as possible. Probably no notice to the vendee is strictly necessary of the intention to sell, though notice' of some kind, of such intention, is- always a wise precaution. This notice was on the 15th of March; 1865, the day on which the defendants refused to fulfill the contract on their part. After this the plaintiffs tried, without success, to sell the barley at Geneva, and finally concluded to ship it to Hew York, where it was sold in the usual way, at the best price which could, be obtained in the market. This shipment, as .the referee finds, was in good faith, for the purpose of getting the best price which could be obtained. The defendants’- counsel contends that if the plaintiffs had the right to sell at all on the defendants’ account as their agents, they were restricted to the place of the delivery of the grain named in the contract, and to a time' necessary for reasonable notice after the right to sell accrued. But I am of' the opinion there is no such limitation to the right. Doubtless the sale should be within a reasonable time. But what would be a reasonable time might depend, upon a variety of circumstances. And as to place, if the article could not [639] readily be sold at the place of delivery fixed by the contract, or a better and more advantageous sale could be effected elsewhere, it would, I think, be the duty of the vendor to go where he could get the best price and readiest sale, not out of the usual course of trade in marketing such property. There is nothing to show that the defendants have lost any thing by the delay, or by the sale being made in the city of New York. It was sent forward as soon as navigation opened, and that course was adopted in good faith by the plaintiffs for the purpose of making the most that could be made out of the barley. These questions as to the delay in selling, and the sale having been made at an improper place, were neither of them distinctly' raised upon the trial. Had they been raised there, additional evidence might have been given as to the necessity, and advantage to all parties, of delaying the sale till the opening of navigation and then sending to and selling in New York. So far as these considerations bear upon the case, these questions now first distinctly presented are of no avail and should not be considered. They can only be raised and urged here, upon the ground that the plaintiffs had no right, under any circumstances, to delay the time they did, and send the property to New York to be sold on the defendants’ account. This seems to be the ground taken, and upon which the point is now urged. In this aspect it is plain that the case could not have been changed by any additional evidence, and so far, I think, it is a proper matter for consideration. But this ground, I think, is wholly untenable. It is not, as the learned referee suggests, a judicial sale, in any sense ; and it seems to me very clear that the vendor, acting as the agent of the vendee, under such circumstances, would be authorized, if not absolutely required, to sell when and'where the most advantageous sale could be effected for the interests of the vendee. Of course he would not be required to go out of the ordinary course and channels of trade. But within those bounds, if he acts [640] in good faith, and does what he believes will be for the best interests of his principal, he should be protected. And the ground upon which the defendants’ counsel asks for the reversal of the judgment, is that the referee overlooked and failed to take into consideration a portion of the defendants’ evidence. It is assumed in this point, that the referee, when the memorandum of the defendant Grreider of the purchase made by him of the plaintiffs was presented, did not notice the word “prime” which had been added by way interlineation or addition to the memorandum as first made, or that if noticed at the time it had been forgotten by the referee when he came to decide the case upon the evidence; and the inference is drawn that if the referee had noticed and remembered this interlineation, when weighing the evidence, the poise, or inclination of the scales, would, or might have been, in the defendants’ favor, instead of the plaintiffs’. The presumption certainly is that the referee did not overlook the terms of the memorandum, or fail to consider it as it stood at the time of the trial, in weighing the evidence to determine where the preponderance lay, on the disputed question of fact. It is for the defendants to show clearly that such an error or mistake has occurred, before he can ask the court to act upon it. I do not find in the case any satisfactory evidence whatever that there has been any such error or oversight. The only evidence is, in the opinion of the referee, where the memorandum is referred to, as containing nothing on the subject of the quality of the barley, and raising the inference that it was to be merchantable barley only. The legitimate inference from this clearly is, not that the referee had not discovered the interlineation, or had forgotten it, but that he had rejected it, as being no part of the memorandum as originally made, and only the work of an afterthought thrown in as a make-weight. Precisely how the referee viewed it is matter of conjecture only, hi or could it be expected his opinion would disclose the precise amount of force given to each circumstance, or the particles rejected in striking the [641] balance. It would never do to reverse judgments on grounds so uncertain and hypothetical as this. The other questions in the case are all questions of fact, upon which the finding of the referee is conclusive. [Monroe General Term, September 2, 1867. The judgment must therefore be affirmed. J. C. Smith, Welles and Johnson Justice.]