Vinson v. Kinney & Co.

Stephens, J. 1. Where an agent, such as a cotton factor, who has been instructed by his principal to sell cotton belonging to the latter immediately and for the best price obtainable, fails to sell the cotton and thereby violates his contract with the principal, no actual damage is suffered by the principal where the cotton has not decreased in value from the time when the agent in the due exercise of his commission should have sold the cotton and the time when the principal learned of the agent’s violation of his agreement to sell and should have affirmed or disapproved of the agent’s conduct in failing to sell. Civil Code (1910), § 3576. 2. It being sought by counter-claim of the principal to recover from the agent damages alleged to have been sustained by the principal because of a violation by the agent of an alleged agreement between the parties to sell the principal’s cotton immediately and for the best price obtainable, and it appearing from the admissions of the principal in his pleadings, sustained by his own testimony, that the value of the cotton had not decreased within the period above indicated, no damage was shown, and the principal can not recover. 3. This being a suit by the agent against the principal upon an open account, the correctness of which the principal admitted, though seeking Dy counter-claim to recover of the agent damages for the alleged breach [732] by the agent of the agreement to sell the cotton, and it appearing, as above indicated, that the principal was not entitled to recover, the verdict rendered for the plaintiff in the full amount sued for was demanded. Judgment affirmed. Decided September 21, 1923. Clements & Clements, Hall, Grice & Bloc\ for plaintiff in error. Harris, Harris & Witman, contra. Jenkins, P. J., and Bell, J., concur.