Perin v. Parker

McAllister, J. There was no evidence' as to any express contract between the parties respecting margins; and they had had similar transactions before without any being furnished by Perin or required by Parker. Neither was there any evidence of a custom or usage of trade or of any rules of the Chicago Board of Trade applicable to the case. It is therefore a case where the common law must be looked to for a guide. By its rules the broker or commission merchant would, in such, a case as this, be required as a condition precedent to the right of his own mere volition, to buy in the grain for account of his principal, deliver it upon the previous sale made by such broker for that principal, and hold the latter responsible for the loss, to give such principal reasonable notice and opportunity to furnish the requisite margins. Denton et al. v. Jackson, 106 Ill. 433. Parker having called upon Perm for margins by notice that he should draw on him, Perin, January 13, 1883, gave Parker notice that he should not advance any money for margins or losses before the differences were ascertained and determined. From the receipt of that notice, if it -was not his duty, Parker would have been justified in immediately buying in the corn, and, to save himself, close up the sales he had made for his principal. And, perhaps, if the notice so given remained unretracted, he would have had the right, nothing intervening to change their relations, to treat such notice as discharging him from the duty of giving what would be considered as a further reasonable notice and opportunity to Perin to furnish the requisite margins. Phillpots v. Evans, 5 Mees. & Welsh. 474; Ripley v. McClure, 4 Welsb. H. & Gordon, 358; Cort et al. v. The Ambergate, etc., Railway Co., 6 Eng. Law Eq. 237. ' But we are of opinion that there were facts and circumstances in evidence, tending to show a retraction of that notice by Perin, and a waiver by Parker, to make it necessary to submit the question to the jury. Parker not only failed to act upon that notice, but afterward made three other demands upon Perin for margins, each successive one being for a substantially larger amount than the former; and, besides, he sought and had a personal interview with him. In neither of the notices he gave Perin prior to that of January 18, 3883, or at the interview, did he give any intimation of an intention on his part to buy in the corn and close out the transaction. Taking all the circumstances into consideration, we think it was a question which should have been submitted to the jury, whether or not Parker, by his acts, waived all rights under each of his notices, down to that of said January 18th. So that, if Perm’s notice of January 13th, that he would advance no margins or pay any losses before the differences were determined, should be found to have been retracted by him, or waived by Parker, and it should be found that the latter had, by his acts, waived all the notices he had given to Perin before that of said January 18th, in which he notified Perin that unless he sent six thousand dollars, by telegraph, by 12:30 of that day, he should buy in the corn for Perm’s account, then the case turned upon the question, whether or not that afforded reasonable notice and opportunity to Perin within the rule announced by the Supreme Court in Denton v. Jackson, supra. We are of opinion that such notice, having been received by Perin at 12:15, to send $6,000 by telegraph by 12:30, it not being his fault that it was not received sooner, but the fault of the telegraph company, which was the agent of Parker, it was not a reasonable notice. The notice was not sent to Perm’s office, but to the Chamber of Commerce, at Cincinnati; Perin did not go there until twelve o’clock, and it was a quarter past when it was handed to him. He was not expected to, and did not, have any such sum of money with him,' and his bank and the telegraph office were the distance of two blocks away; besides, it would require more than the time allowed to make the necessary arrangements for the money. How, by the sixth and eighth instructions for the plaintiff, each of which purported to direct the jury as to all the necessary elements of the plaintiff’s cause of action, there is an utter failure to submit to the jury any question as to the retraction by Perm of his notice of January 13th; any question as to waiver by Parker of all his notices prior to that of January 18th, or of the reasonableness of that or any other notice by Parker to his principal. We are of opinion that both of those instructions were substantially defective and misleading, for the giving which, the the judgment must he reversed and cause remanded. Judgment reversed.