Toledano v. Klingender

Bullard, J., delivered the opinion of the court. This case presents the single question, whether the payment of the price of a lot of cotton to a broker, who effected the sale and purchase of it, be a good payment and binding on the plaintiff as vendor. According to the Louisiana Code “the broker or intermediary is he who is employed to negocíate a matter between two parties and who for that reason is considered as the mandatory of both,” art. 2985. It is only in facilitating the transaction of business in relation to the sale and purchase of produce, that the broker is considered as the common agent of the parties: the channel of communication between them. For any other purpose he is not regarded by law as the agent . ° of either party. To justify a payment therefore made to a broker, a purchaser is hound to show, either a general custom, or a special authority from the vendor to receive payment. The evidence in the record certainly does not establish a' custom, and the weight of evidence is the other way. Many [694] • extensive dealers state that their practice is not to pay the broker; and when they do so, it is in consequence of their confidence in him personally. E. Forstall a broker states in his testimony that it is the practice of some purchasers to pay the proceeds to the broker or intermediary, but some houses only pay the brokerage to the broker and settle with the factor. Witness receives more in that way than any other, as he frequently advances his own money before the cotton is weighed. The factor sometimes sells for less, say a quarter of a cent, to get money before three o’clock. The money in such cases is generally paid to the broker. But it is contended that Raréshide was not merely a broker but that he was authorised by the plaintiff to sell, and consequently to receive payment of the price. We have no doubt he represented himself to each party as the broker of the other, and his subsequent conduct justifies the belief, that he was capable of deceiving both. It is clearly established that this transaction was the first and only one in which he had ever acted for the parties. He was therefore personally a stranger to both. But what is the evidence that Toledano authorised him to act in any other way than as a broker? that he constituted Raréshide his agent in any other sense of the word. A clerk of the defendant’s agent testifies that when Toledano called on Mr. Gildemeester for the balance of the price of the cotton, he did not dispute having authorised Raréshide to act as his broker in the sale of the cotton, on the contrary he admitted he had authorised him to sell it. Mr. Gildemeester does not go quite as far in his testimony. But even the statement of Gottschalk does not state that Toledano regarded the broker as any thing more than a broker. Laying out of view the subsequent declarations of Raréshide, which we do not consider legal evidence or as forming a part of the res gesta his acts so far as they are evidenced by writing would exhibit him rather as purchasing for the defendant than as selling for plaintiff. The order on which the cotton was delivered at the press is as follows: “fifty bales of cotton bought of C. Toledano for account of F. Klingender, &c.” In making out the invoice he charged the defendant with [695] brokérage. In a case balanced as this is, if it were shown that the defendant was induced to pay the broker by any act of the plaintiff, we should think the loss ought to fall on him. But in the absence of proof of any authority in the broker to receive payment, or of any act from which such authority might be presumed, we are of opinion that the defendant acted without due caution, and equity requires that he should sustain the loss. In tlie absence of proof of any authority in a broker to receive payment for the seller, or of any act from which such authority can.be presumed, the buyer who pays must sustain the loss, in case the broker fails to pay over the money. It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.