Louisville, New Albany & Chicago Railway Co. v. Diamond State Iron Co.

Mr. Justice Magbudee delivered the opinion of the Court: This is an action' of assumpsit, brought in the Superior Court of .Cook. County by the appellee against the appellant to.recover the.amount of loss .claimed to have been sustained by the appellee on account of the alleged failure of the Chicago and Indianapolis Air Line Bailway Company to accept 2000 kegs of railroad spikes sold to it by appellee. The cause was submitted to the court for trial without a jury; verdict was rendered for the plaintiff for $3000.00 and judgment on verdict. Upon appeal to the Appellate Court of the first district the judgment was affirmed, and appellant prosecutes its further appeal to this Court. The appellee is a corporation organized under the laws of Delaware and doing business at Wilmington in that state. In Fébruary, 1880, it made a contract with said Air Line Bailway Company to sell to the latter 2500 kegs of railroad spikes of 150 lbs. each, of the best quality, of its own brand, at 4J cents per pound, payable by sight draft, with bill of lading attached, upon Henry Crawford, President of the Air Line Bailway Co. at Chicago, the spikes to be delivered at the seller’s mill in Wilmington, to be shipped one half about April 15, 1880, and balance early in May, 1880, shipping directions to be given by the buyer, and the seller guaranteeing that the freight from their mill to any point in the west should not exceed the rate from Philadelphia to same point. The contract was made and the negotiations and correspondence were carried on between Cherrie & Co. of Chicago, as brokers for' the Air Line Bailway Co., and Levis '& Co. of Philadelphia as brokers for appellee. On May 31st, 1880, 500 kegs of the spikes were shipped and received by Crawford, and paid for by him after considerable delay. The remaining 2000 kegs were never accepted by the Air Line Bailway Co., and it is on account of such failure to accept them, that this suit is brought. The Chicago and Indianapolis Air Line Bailway Company was consolidated with the Louisville, New Albany and Chicago Bailway Company, the appellant herein, and was taken charge of by appellant and adopted the latter’s name. It is not claimed, that, if the Air Line Bailway Co. is liable, the appellant Company is not also liable. The proof tends to show that, at the date of the refusal to A I accept the spikes, the market price had declined, entailing upon appellee a loss of $1.50 per keg or $3000 for the 2000 kegs. The only errors assigned by appellant and insisted upon by its counsel grow out of the refusal of the trial court to hold as law certain propositions submitted to it. The proof tends to show, that an agreement was made between Cherrie & Co., brokers of the Air Line Railway Company, and employed by that company to buy the spikes, and- Levis & Co., brokers of appellee, by the terms of which Levis & Co. were to divide with Cherrie & Co. the commissions to be paid them by appellee for selling the spikes. The second of the refused propositions holds that, if, during the pendency of the negotiations for the purchase of the spikes, such an agreement was made without the knowledge or consent of the Air Line Co., the contract sued upon in this case is fraudulent and void as against such company. The proposition is erroneous and was properly refused. If this were a suit by Cherrie & Co. against the Air Line Co. to recover compensation for services in making purchase of the spikes, the Company might urge such an agreement as a defense. But this is a suit by appellee as principal upon the contract with the Air Line Co. There is no evidence that appellee knew of any agreement .by its brokers to divide commissions with Cherrie & Co. It used no improper means to induce the brokers of the purphaser to act against the interest of their principal. .We know of no principle, upon which the Contract can be held fraudulent and void as against appellee by reason of the arrangement between the brokers made as it' was without appellee’s knowledge. The third of the refused propositions asserts that, if, after the 500 kegs were shipped, plaintiff below did not ship the remaining 2000 kegs, the finding should be for the defendant. This proposition is erroneous as leaving out of view the question whether or not the Air Line Co. gave the shipping directions, which it was bound to give before the plaintiff could be compelled to forward the balance of the kegs. By the terms of the contract the buyer was to give shipping directions. Cherrie swears that Crawford, the president of the Air Line Co., “gave us directions at one time for 500 kegs; said he would give us the order as to the rest later.” Todd says: “It was not until the latter part of May that we had shipping instructions for the first shipment; on May 31st we shipped the 500 kegs of spikes,” etc. The proof shows that the sight draft, drawn by the plaintiff on Crawford for $3187.50, the price of the 500 kegs, in accordance with the terms of the contract, was not paid until August 16, 1880, and then only $500 in cash and the balance in Crawford’s 30 day note, which was protested for non-payment at its maturity. The proof also shows, that, during this period while plaintiff was trying to collect the money due for the 500 kegs, its brokers were continually calling for shipping instructions as to the remaining 2000 kegs, which instructions, however, were not forthcoming. On June 15, 1880, Levis & Co. write to Cherrie & Co.: “We will also be pleased to receive any instructions or suggestions as to' future shipments, if you have any to make.” On June 17, 1880, Cherrie"& Co. write to Levis & Co.: “We saw Mr. Crawford and he said very frankly that he intended to pay for the spikes, but could not do so just now, and could not say definitely when he could, and that he would like them held a little while.” On June 29, Levis & Co. telegraph to Cherrie: “shall we ship the balance at once”? On August 10, Levis & Co. write to Cherrie & Co.: “Let us know when he proposes to take the balance of the spikes.” On August 16, Levis & Co. write to plaintiff: “They (Cherrie & Co.) write in reply to our inquiry that as yet they have not been able to ascertain anything in regard to Mr. Crawford’s intentions as to the balance of the contract,” etc. The sixth, eighth and tenth of the refused propositions proceed upon the assumption, that on April 15,1880, the Air Line Co. gave shipping directions for all of the 2500 kegs and were not bound thereafter, to give any further directions, and that the obligation was thereby imposed upon the plaintiff to proceed with the shipment of the whole lot of 2500 kegs. The refusal of these propositions was clearly right, as they ignore a very material part of the evidence. As already stated, there is proof to the effect that Crawford directed only 500 kegs to be shipped at one time. The eorrespondence shows, that, on April 15, 1880, his brokers, in answer to a telegram from Levis & Co. dated April 13 and asking for shipping directions, wrote to Levis & Co. to begin, to ship on May 1st, although, by the terms of the contract, one half were to be shipped April 15 and the balance early in May, 1880. Before May 1, towit: on April 28, plaintiff was told: “after May 15, you may ship the 2500 kegs,” etc. .Before May 15, to wit: on May lé, Crawford telegraphed: “Present freight rates from East excessive; pending new arrangements, desire nothing shipped; when, we will advise you.” On May 25, plaintiff was again told that it was “advisable not to ship the spikes for a few days.” After the Air Line Co. thus changed and modifiéd its original instructions of April 15 and requested plaintiff to delay action under them, it can not complain that plaintiff complied with its request. ' The evidence is clear that the Air Line Bailway Co. did not have the money to pay for the spikes and was trying to gain time and yet not to lose the benefit of the contract. We see no error in the record. The judgment of the Appellate Court is affirmed. Judgment affirmed. Mr. Justice-Bailey, having heard this case in the Appellate Court, took no part in this decision.