Faraldo v. Ferdinand Gumbel & Co.

LAND, J. This case arises from a dispute between a country merchant and his factors in New Orleans. Plaintiff claims that in December, 1904, he entered into an agreement with the defendants, whereby his cotton would be held for at least one year, unless in the meantime plaintiff notified the defendants in writing to sell. The cotton was sold early in February, 1905, and the net proceeds credited to plaintiff’s account, leaving a balance of $1,243.94 due the defendants. Plaintiff claims that the cotton was sold without his instructions, and that he protested against the sale. On July 13, 1905, plaintiff wrote to the defendants to sell said cotton. The current market price of cotton had in the meantime advanced several cents per pound. Plaintiff sues for the gross proceeds of the sale of the cotton less 2ys per cent commissions for selling. Defendants deny the alleged agreement to hold the cotton for one year, and aver that same was sold with the consent of the plaintiff given to their agent on or about January 28, 1905. The preponderance of the evidence supports the contention that the agent of the defendants on December 15, 1904, agreed with plaintiff to hold the cotton for one year in consideration of the execution of a special mortgage for $2,000 as collateral security for the payment of advances made and to be made by the defendants. That some agreement was reached on the subject is shown by the correspondence between the parties. On January 7, 1905, plaintiff wrote to the defendants as follows: “I was under the impression that the arrangements recently made with you were to assist me in holding my cotton until such time as I want to sell and that time has not yet arrived. I will let you know when I want to sell it.” Defendants replied on January 9, 1905, as follows: “We note that you are under the impression that the last arrangements made were to enable you to hold your cotton. It is true that this arrangement held good at the time, but the market has declined since considerably, and of course, your cotton is of less value, and therefore your account not in shape for us to hold at present prices.” In their answer the defendants aver that on January 28, 1905, their agent obtained the consent of the plaintiff to sell the cotton, and that on being so notified by their agent defendants made the sale. It may be inferred from these averments that on that date the cotton was held subject to the order of the plaintiff. The alleged consent is not proven by the evidence as it is affirmed by the agent and denied by the plaintiff, and the former is contradicted on other material points by several witnesses. On being informed of the transaction, the plaintiff protested in forcible language against the sale as made without his authority and against his orders. In reply the defendants said: “Now, we surely would not have sold your cotton had we not your instructions, nor would our Mr. Lazarus have written us unless you gave him these instructions to sell your cotton.” [1] This reply is an admission that the cotton was held subject to the instructions of the plaintiff, and this is our conclusion from the evidence taken as a whole. While the agent may have agreed that the plaintiff might hold the cotton for one year, there is no evidence to show that the defendants authorized or ratified such an unusual agreement. Plaintiff in one of his letters wrote that he expected to hold the cotton until March, and longer if conditions were not favorable. We are convinced that the plaintiff would have instructed the sale of the cotton on any considerable advance in the market, and, as there is no means of telling when he would have sold, we think that it is fair to allow him the benefit of the average advance be [291] tween the date of sale and July 14, 1905, as the defendants acted in good faith on the report of their agent. The transactions between the parties subsequent to the date of the sale of the cotton have been considered by us, but we do not think they operate as a waiver of plaintiff’s claim for damages. The amount allowed the plaintiff on the basis stated less customary charges will be credited on his account with the defendants as of average date between February 1 and July 14, 1905, and for the purpose of adjusting the accounts between the parties the case will be remanded, reserving to counsel the right to agree on the basis of a decree according to the views herein expressed, and to reopen the case for final adjudication. It is therefore ordered that the judgment below be reversed, and that this Cause be remanded for further proceedings according to law, subject to the reservation above expressed.