Marland v. Stanwood

Ames, J. The case finds that the defendant employed the plaintiffs, who were cotton brokers in Mobile, to buy for him, at a price not exceeding forty-two cents per pound, one hundred and fifty bales of cotton. Their instructions were substantially to buy “ the best you can; ” a form of expression which apparently left to them the largest possible discretion to buy as opportunities should offer, at prices not exceeding the prescribed limit. In about three months, they purchased, in part execution of their commission, and forwarded to the defendant in Boston, seventy-eight bales, which he refused to receive. He lost no time in notifying the plaintiffs that he repudiated the purchase, and expressed his dissatisfaction that they had delayed the matter for so long a time, and then bought upon a falling market. In consequence of this refusal on his part, the plaintiffs turned over the bill of lading to another commercial house in Boston, and caused the cotton to be sold on their own account, the result being a large pecuniary loss. The defendant objects, among other things, that the plaintiffs have only partially fulfilled their commission; that the order was specific and entire for the purchase of one hundred, and fifty bales; that he was not bound to accept and pay for any less quantity; and that for that reason the plaintiffs have no right to maintain their action against him. Whether under the terms of his answer, denying the plaintiffs’ allegations in general terms, this objection is open to him, and also whether the circumstances attending the trial amounted to a waiver of this objection on his part, are questions which it will not be necessary to decide. If the plaintiffs were employed to buy the entire quantity of one hundred and fifty bales, there is nothing [478] whatever in the case to indicate that they were to buy the whole quantity at the same time, or of the same person, or to forward the whole in the same vessel. The defendant refused to receive the cotton, not on the ground that the whole amount ordered had not been obtained, but on the ground that there had been unreasonable delay on the plaintiffs’ part in executing their commission. He tells them that to wait three months and then buy on a falling market is “ a mode of doing business that he is not used to.” For this reason he notifies them that he repudiates the purchase—a notice which would certainly prevent them from buying the remaining seventy-two bales on his account. He is in no position now to take the objection that they sent only seventy-eight bales, for he refused to receive any, and expressed himself as being dissatisfied that after such a delay they should buy any cotton at all on his account. The first request for instructions to the jury on the part of the defendant was therefore justly and properly rejected by the presiding judge. He was also requested to instruct the jury that, unless the plaintiffs, at the time they directed the defendant to turn over the bill of lading and the goods to other hands, notified him that they should hold him responsible for any loss in the sale of the cotton, they could not maintain their action. But if, in repudiating the purchase, the defendant had acted in violation of the plaintiffs’ right, they were under no obligation to notify him that they should hold him responsible. This instruction the presiding judge therefore refused to give, and we think he was entirely right in that refusal, and also in the refusal to give the third instruction prayed for by the defendant, namely, “ that, upon the uncontroverted facts of the case, the plaintiffs were not entitled to maintain their action.” The uncontroverted facts are certainly quite as consistent with the plaintiffs’ theory of the case as the defendant’s. They had made a large purchase of cotton, and had drawn upon him for the price, and for their commissions. It was at least a question for the jury, whether there was in fact a mutual rescinding of the contract, or whether there was anything in the case but a breach of faith on the defendant’s part, and an attempt on the part of the plaintiffs to protect theii [479] drafts by applying towards their payment the cotton which was thrown back on their hands by the defendant. The case appears to have been submitted to the jury with correct and proper rulings and instructions, and we see no cause for disturbing the verdict. Exceptions overruled.