Hall v. Storrs

By the Court, Cole, J. This cause was tried before the county court of Milwaukee county, without a jury, and a judgment was rendered for the respondents. The counsel for the respective parties have admitted by stipulation that the following facts were found by the county court: 1. “ That the respondents resided in Whitewater, and did — 258 — business at that point, and that the appellants were factors and commission merchants in the city of Milwaukee. 2. “ That the respondents on the 15th day of May, 1857, shipped a quantity of wheat consigned to the appellants, that the appellants received the wheat on the same day and sold it to Montgomery & Cutler, and took in payment therefor, the check of Montgomery & Cutler, dated on the 16th day of May, 1857, one day after the sale. And that on the evening of the same day, the appellants forwarded to the respondents a statement of the amount of sales, less their charges and commissions, and forwarded in the same letter the amount of said sale less their commissions and charges.” 3. “ That the check of Montgomery & Cutler was presented on the day it bore date, to-wit: on the 16th, and payment was refused, and that Montgomery & Cutler on that day were insolvent, and that the check has not been paid.” 4. “ That by the usual course of business in Milwaukee, commission merchants collected cash sales on the day after delivery.” 5. “ That on the 16th of May, the respondents shipped another quantity of wheat to the appellants, which they received and sold for cash, and returned to the respondents a statement of the sales, but did not forward the money received on such sales, and it is for the last sale that the suit is brought.” 6. “That up to the 16th of May, Montgomery & Cuiter were in good credit.” The appellants admit in their answer that the wheat was consigned to them by the respondents to be sold for cash. Upon this state of facts the question arises, who is to sustain the loss of the Montgomery & Cutler check, the appellants or respondents ? We are most clearly of the opinion that it must be the former. Wé do not understand the general proposition to be controverted, that it is the first duty of an agent or factor whose — 259 — authority is limited by instructions, to adhere faithfully to those instructions in all cases to which they properly apply. The express orders of the principal, when they are clear? possible and proper, leave no discretion with the agent, but are absolutely imperative upon him. If a person employs another to act for him in any lawful business, he has an undoubted right to limit and restrict the agent’s authority as he thinks proper. And if the agent violates his duties and obligations to hi 3 principal, whether by exceeding his authority, or positive misconduct, or by negligence or omission in the proper functions of his agency, or in any other manner, and any loss or damage results therefrom to the principal, he is responsible therefore and must make full indemnity. There are a few exceptions when an agent is held justified in cases of extreme necessity, arising from unforseen emergencies in departing from positive instructions. But these exceptions have no application to this case. Here the appellants in effect concede that they received the wheat, and were instructed to sell it for cash. Is there anything ambiguous about such an instruction ? In the common, ordinary, popular acceptance of the language, was it not a clear, positive and unqualified direction not to sell or pass title to the wheat without cash in hand ? When a country merchant forwards wheat to a factor in Milwaukee, to be sold for cash, does he expect that the grain will become the property of another without the consideration being paid down ? A sale then for cash we suppose means that the money shall be paid when the title to the property passes. This is the common, popular sense of the language, and the appellants had no authority except to dispose of the wheat according to the strict orders of their consignors. And if they have assumed the power of departing from the instructions, and a loss has occurred in consequence of it; they must sustain it and not their principals. It appears to us, that to saction a latitude of action in the factor beyond — 260 — the rigid commands of the principal would be most mischievous, and unsettle long established principles of law. But it is said that in the absence of instructions or where the terms of the instructions have a peculiar signification at the market where the article is to be sold, the usual and customary manner oí sale is to be the rule for the factor, and the' consignor and factor are both deemed to have contracted with a view to such custom or usage. This may all be very true, and yet how does the proposition help the appellants’ case ? We have already stated that in our judgment there was nothing peculiar or doubtful or ambiguous in the direction given by the respondents to sell the wheat for cash. That in the popular and common sense of the language, such a sale is understood to be one where property is sold for money in hand. And that it is an ingredient or condition of a cash sale that the title to the property does not pass to the purchaser until the purchase money is paid. We are aware that cases can be found which go to establish the doctrine that when a factor has received goods with direction to sell for cash, but which he does not sell for cash, but on short time, according to the usage and custom of the market, it has been held that such a sale was in compliance with the orders of the principal. See Clark vs. Van Northwick, 1 Pick. 342; Contra, Catlin vs. Smith, 24 Vt. 85; Barksdale vs. Brown, et al. 1 Nott and McCord 517; Leland vs. Douglass, 1 Wend. 492. We doubt exceedingly the soundness and correctness of the rule which permits a usage or custom in any particular business or trade to qualify or vary the instructions to an agent, and allow him to show that by the understanding of merchants a sale on credit was no violation of an order to sell for cash. But if it may be shown that terms in any particular business or trade, by usage have acquired a meaning different from their ordinary acceptation, and that by such custom a cash sale does not mean what the language imports, then it is obvious that — 261 — the evidence of such a custom should be most clear and satisfactory. Now, we do not think the proof in this case would at all warrant us in saying that a local usage existed in Milwaukee so 11 ancient, uniform, notorious and reasonable” that the respondents and appellants must be presumed to have contracted with reference to it, and that áccording to this usage a cash sale is when property is sold one day and the purchase money is collected the day after delivery, and we should not be authorized from anything we can see in this case in supposing such a custom to exist. And manifestly if such a custom does obtain in Milwaukee and the appellants relied upon it to excuse themselves from a seeming violation of orders to sell for cash, then they should have established the custom beyond all reasonable doubt. Since they did not show the existence of such a custom, we must hold them to all the responsibility of violating the instructions of their principals, and they must lose the amount of the check of Montgomery & Cutler, instead of the respondents. Something was said upon the argument by the counsel for the appellants, about the practical inconvenience which would result from our holding, that in the grain trade in Milwaukee, on cash sales the money must be paid at the time the property was delivered. But with the practical inconvenience of the business, we have nothing to do. Our duty is to hold parties to their contracts and to the measure of liability which the law imposes upon them. But we suppose if factors should find it impracticable or impossible in cash sales in the grain trade, to have the purchase money paid down before a delivery of the properly, they can refuse to receive grain consigned to them to be sold for cash. It will be seen that we have placed the appellants liability in this action rather upon the ground that they violated the instructions of the respondents in reference to the sale, than — 262 — upon the ground of a settlement or accounting between the parties. The county court in the opinion filed, seemed to think that it was a voluntary payment of the amount of the check by the appellants without any mistake of facts, and that therefore it ought not to be recovered back by them. It is not necessary for us to go into this branch of the case. We are satisfied that upon the record the judgment is correct and must be affirmed.