Andrews v. Himrod

Garnett, J. The suit was in attachment, the affidavit which was made by one of the appellees as a basis for the suit stating that defendants were indebted to plaintiffs for commissions as brokers in the sale of the iron. Appellees tacitly concede that the action was commenced on a wrong theory and that the recovery, if any, must be for damages occasioned by defendants’ breach of contract. The declaration first filed consisted of the common counts only. A special count was afterward filed by leave of court, setting up that the purchase by plaintiffs was at $22.25 per ton and the sale by them to the Steel Company at $22.50 per ton; that defendants agreed to ship and deliver the iron to the Steel Company and to collect the amounts to become due for the iron from the Steel Company, and pay to plaintiffs twenty-five cents per ton on the 5,000 tons; that thereupon the defendants entered into a written contract with the Steel Company for the sale and delivery to it of the iron (giving verbatim the contract, signed as stated, by Daliba, Hussey & Co.); that defendants failed to deliver any part of the iron and had refused to pay plaintiffs any part of the twenty-five cents -per ton on same, and that by reason of defendants’ failure to carry out their agreement with the Steel Company and the plaintiffs, the plaintiffs have suffered damage in the sum of $2,000. As the judgment must rest on the special count only, it is material to inquire whether the proof supports its averments. There was probably some arrangement between appellees and the Steel Company before the 14th of July, but exactly what it was is not disclosed by the record. Ho notice of that was given to appellants at any time, or to their agents until after the contract with appellees was made. Appellants had the right to suppose appellees were the real purchasers. The entry on appellants’ books showed they did consider them the purchasers, and concluded a negotiation which created the relation of vendor and vendee between them. That appellees understood that a contract of purchase had been effected, is manifest from their notification to the Steel Company that the purchase had been made. Hone of the subsequent . communications between them and Daliba, Hussey & Co. operated to change appellees’ contract. Utley v. Donaldson, 4 Otto, 29. Daliba, Hussey & Co. were agents, with limited and specified powers. Having procured purchasers on terms satisfactory to, and approved by, appellants, they had no authority to release such purchasers or alter their contract in any material point. Changes in the contract assented to by appellants might have bound them, but the only change they were notified of, or consented to, was in the shipping directions. To them that was an immaterial circumstance. If this conclusion is correct, appellants made no contract, as alleged, with the Steel Company, or with appellees, to collect the amounts to become due from the Steel Company and pay to appellees twenty-five cents per ton. Everything that has the appearance of such contracts was the unauthorized action of Daliba, Hussey & Co. Admitting, however, that a declaration can be framed according to the facts in the case, what are the damages? The court below found that the plaintiffs were entitled to recover $1,250, or twenty-five cents per ton on the whole 5,000 tons, without any proof whatever as to actual damages. That was, doubtless, on the supposed ground that appellants knew that appellees had resold the iron. See Thorne v. McVeagh, 75 Ill. 81; 1 Sutherland on Damages, 84. But, in truth, the contract with appellees was completed before either appellants, or Daliba, Hussey & Co., were informed of any resale. The ordinary rule, therefore, should prevail, which limits the damages to the difference between the contract price and the value of the goods on the market, at the time and place of delivery. 1 Sutherland on Damages, 81, 82. The judgment is therefore reversed and the cause remanded. Reversed and remanded.