Thornhill v. Picard

Wyly, J. The plaintiffs, as the legal representatives of tho late commercial firm of Thornhill & Nixon, sue the defendants for the balance of an account and also for commissions on two hundred and ninety-two bales of cotton which it is alleged they agreed to ship to said firm but afterward failed to do so. The defendants admitted the balance of account and alleged legal tender thereof, but denied any agreement to pay commissions on cotton not shipped. The court gave judgment for plaintiffs for the amount of the balance of tho account, but rejected their claim for the commissions. The plaintiffs appeal. On the fifth day of July, 1869, the defendants wrote to Thornhill & Nixon: “Are you willing to let us draw on you, when needed, the the amount of $3000 without charging us the two and a half per cent, for advancing. If so, we shall ship our cotton to you, as promised by our Mr. Weil to your Mr.'Nixon.. We are furnishing to the amount of throe hundred and fifty bales at least, besides the cotton we may buy during the season. ”«*■*** * This proposition was accepted by Thornhill & Nixon, as appears by the evidence, especially the defendants’ letter to them dated eleventh July, .1869, to wit: Your dispatch and favor, eighth instant are both received, wherein we are informed that yon accept our proposition. In addition to our business, we shall use our influence toward getting other parties to ship-you some cotton. ” * * K 5 ■* It appears that tho defendants failed to perform their part of the agreement; that they oniy shipped to Thornhill & Nixon fifty-eight [160] bales; that they shipped one hundred bales to Lehman, Newgass & Co.; and no cause is shown for failing to perform their engagement. In order to obtain the advance of $3000 on tho terms stated, the defendants expressly agreed to shij) Thornhill & Nixon all their ■cotton; this implied, of course, the agreement that they should have .the usual commission of two and a half per cent, for selling tho same; otherwise there would be no motive for the said firm to make the advance. We therefore think the plaintiffs should recover the commissions claimed on tho one hundred bales shipped to Lehman, Newgass & Co., which amounts to $242 50, estimating the value of the cotton at $97 per bale, the average price of fifty-eight bales delivered under the contract. 2 An. 624; 5 An. 505, 548. It is therefore ordered that the judgment appealed from be increased by adding- to the amount thereof the further sum of two hundred and forty-two dollars and fifty cents, and that the defendants pay costs of both courts.