Paxton v. Meyer, Weis & Co.

George, J., delivered the opinion of the court. On the 26th of February, 1877, Drew Whitly and nine others executed a deed in trust to secure one Langsfield for supplies to the amount of $1,200, and at the same time executed their note to said Langsfield for that sum, due September 1, 1877. On the same day Bohlen Lucas and six others executed another deed in trust to the same party to secure the sum of $500 in supplies, for which they also gave their note, due on the 1st of September, 1877. All these grantors were colored,- and were tenants of the appellant, A. J. Paxton. The deeds in trust are exactly alike except as to the amount intended to be covered, and conveyed to a trustee all the crops of corn and cotton to be grown by the grantors on the plantation of said Paxton in the year 1877. There being an alleged failure on the part of Langsfield to furnish the necessary supplies, Paxton made advances, and when the crop was gathered, shipped and sold the cotton and applied the proceeds to the payment of his advances, including those which he had made after notice of the trust-deeds was given to him. The cotton was insufficient to pay Paxton, and he declined to pay any of the proceeds to Meyer, Weis & Co., who had become the assignees of the deeds in trust. Thereupon Meyer, Weis & Co. — 453 — filed two bills — one on each of the deeds in trust — to enforce their claims. Paxton was made a defendant, with the grantors, to each. By consent, the two cases were consolidated and tried together. The chancellor held that the grantors in the trust-deeds were not bound by the contract price of the goods furnished under these deeds, and referred it to a master to ascertain the proper price to be charged. The master was directed to state the account “ at such rates for the articles charged as shall appear to have been customary, fair, and reasonable in the kind of credit business and with the class of people with which and by whom said accounts were contracted in 1877,” and to allow two and one-half per cent commissions on the advances, and interest at ten per cent from the 1st of January, 1878. The master heard testimony to show that a higher price was charged to persons buying on the credit of such mortgages than to solvent customers, and, acting on the idea that such higher charges were proper, after making some small deductions, reported as proper charges allowing a profit of about ninety to one hundred per cent, besides the two and one-half per cent commissions, and interest. From this decree Paxton appealed. One of the deeds in trust contained this stipulation : .“That the party of the second part (Langsfield) has agreed to advance to the parties of the first part (the grantors), from time to time, as they may need the same during the present yeaf, in plantation supplies and other articles, to an amount not exceeding twelve hundred dollars, which last-named amount is evidenced by the joint and several promissory notes of the grantors of even date herewith, and bearing interest at the rate of ten per cent per annum from date, and payable on September 1, 1877.” The deed contained also a stipulation to pay two and one-half per cent commissions on the advances. The other deed was like this, mutatis mutandis. The first inquiry is to ascertain the meaning of the deed in trust as to the terms on which the goods were to be sold. — 454 — This deed obligates the merchant, Langsfield, to furnish goods during the year, as needed, to an amount not exceeding $1,200. The price is not fixed at which the goods were to be charged. In such a case, the rule is well settled that the price is to be what the goods were reasonably worth at the time and place of the sale. In Hoadley v. McLaine, 10 Bing. 482, it was said : “ It is clear that the contract for the sale of a commodity in which the price is left uncertain is, in law, a contract for what the goods shall be reasonably worth.” And in Acebal v. Levy, 10 Bing. 376, it was said: “As no price is stated to have been agreed on, the law presumes the agreement to have been, or assumes as a condition of the contract, that the price was to be a reasonable one ; ” that is, “ such a price as the jury, upon the trial, shall, under all the circumstances, decide to be reasonable.” This rule, thus expressed, meets the approbation of the most approved text-writers. Benj. on Sales, sects. 85, 86 ; Story on Sales, sect. 221. The rule by which the reasonable value of goods is to be determined is, ordinarily, their market value at the time and place of the sale. In transactions between regular dealers in staple articles of general commerce, and where no extraordinary circumstances exist to derange temporarily the market price, that would be a safe standard by which to measure the value of goods. This market price is what the goods would readily sell for in the regular course of business, and it is fixed by competition among the buyers and sellers. When this competition is free and unimpeded, it fixes on articles of general commerce a single price in the market at the same time and place, and this price is quotable in a price-current. But even in respect to such articles, and in that kind of dealing, the market price on any particular day is not the absolute standard of the value of the goods. In Acebal v. Levy, 10 Bing. 376, it was said: “ The current price of the day may be highly unreasonable, from accidental circumstances, or on account of the commodity having — 455 — been kept back by the vendor himself, or with reference to the prices at other points in the same vicinity, or from various causes.” The market price may be unnaturally inflated, as by a speculation called. “ a corner” (see Kountz v. Kirkpatrick, 72 Pa. St. 398) ; and so it maybe disturbed “ by illegitimate combinations for temporary, special, and selfish objects, independent cf the objects.of lawful commerce, and a forced and violent perversion of the laws of trade, not within the contemplation cf the regular dealer, and therefore not deserving to be regarded as a proper basis upon which to determine value, when that fact becomes material in the administration of justice.” Smith v. Griffith, 3 Hill, 337. This is true with reference to transactions between regular dealers by the wholesale, and in relation to commodities having a quotable market price, and when the dealings are on a cash basis or its equivalent. With ■reference to retail trading in the ordinary articles kept by shopkeepers, a market price is more difficult to fix, and it becomes still less potent as a measure of reasonable value. Mr. Mill, in his work on political economy, justly remarks that in the retail business there is no regular or standard market price; that “there are cheap shops and dear shops, .and in the same shops goods are sold at different prices to different customers.” And it is a matter of common observation that the competition in the trade, the ignorance and sometimes the indolence of purchasers, the difference in the quality of the articles and the adulteration of some of them, not discernible except by skilled dealers, the connection in business or otherwise between the dealer and the customer prevent the fixing of a regular market price. This incertitude in the retail price is shown by the evidence in the case before us, it appearing that there is a difference among the merchants in the same .neighborhood of from fifteen to twenty-five per cent in the ■price of several staple articles, even when sold on liens on ■crops. It is evident, therefore, that in determining the reasonable — 456 — value of the goods sold at retail or on credit, there must be a wider latitude allowed than in sales by wholesale for cash. In the wholesale business the difference between cash and credit prices, ordinarily, is but little more, if any, than the current rate of interest for the time of the credit. In the retail business this difference is generally greater. Hence the greater difficulty in the fixing what is the reasonable value of the goods when sold by retail and on a credit. As there is-no quotable market price as in wholesale dealings, the jury are to look in a large measure to the average of the prices-charged by shopkeepers or retailers. They may look at these-prices as shown by cash sales, and also in sales on a credit, and from all the circumstances fix the reasonable value. We have been unable to find a case in which a difference is recognized in the cash and credit price of an article as fixing a market value. It is clear that the interest for the term of the credit might be added in the credit price, but unless there be a fixed custom allowing a greater difference, it would be difficult to adjust properly the retail market price. As an element in fixing the market price, the insolvency of any of the purchasers is never considered, for legitimate and regular commerce proceeds on the supposition that the purchasers are solvent; or, if there be exceptions, they do not amount to the fixing of the market price. If such a difference between cash and credit prices be allowed in excess of interest, it can only be on the basis of a fixed market price, proved by the evidence and arising from the sales in the regular course of business to solvent customers- Manifestly, whenever this price, as thus-fixed, is departed from on account of the insolvency of the purchaser, this price must or ought to vary in every instance, so as to adjust the price to the risk, according to the degree of insolvency of the particular customer. This price is exceptional, not regular, and arises out of an illegitimate commerce. Yet it must be borne in mind that the factum probandum, the real point of inquiry, is not the market or usual price of the goods, but their reasonable value. The price ma}7 be457 proven, and ought to be considered, but it is only as a means, or one of the means, to determine the reasonable value. Applying these principles to the case before us, the directions of the decree, which were literally followed by the master in the examination of the witnesses, are erroneous. The direction was to ascertain what the class of persons to which the purchasers in the case belonged should be charged. It was, in effect, stated that higher rates were justifiable as against them than against other and more solvent purchasers. There is no justification for such a ruling in reason or authority. The merchant bound himself in the deed in trust to furnish the goods, as needed, at what they were reasonably worth. For this obligation he received a valuable consideration— the deed in trust on the crops of the purchasers. He carved out his own security, and must be deemed to have considered it sufficient, and he cannot now be heard to say, so as to relieve himself from his obligation to sell at a reasonable price, that his debt was insecure. The chancellor’s duty was to interpret and enforce a contract which had been made by the parties, not to make a contract for them, nor to fix the proper elements for such a contract. As we have seen, the law assumed, as a condition of the contract, that the price should be the reasonable value of the goods. The law takes no notice of the nature of the security. If the seller be satisfied with it, no one else can interfere, and his satisfaction with and acceptance of it bind him to the bargain he has made. The proper inquiry of the master was not as to the price of the goods when sold to insolvent persons giving only a precarious security, but as to their reasonable value, to be determined, in a large measure, as we have seen, by the usual and customary price as fixed by sales to solvent purchasers on a credit. The inflated price charged bv merchants in the vicinity to insolvent purchasers was accidental and abnormal, and resulted from a perversion of the laws of trade. It grew out of a commerce which is illegitimate so far as it is based on the insolvency of the purchaser. — 458 — The duty of the Chaueery Court was to ascertain the reasonable value of the goods. This duty, we have seen, is difficult to perform in retail trade; and it becomes an impossibility when, in addition to the other elements of uncertainty necessarily incident to that kind of business, courts are required to go further, and ascertain how much shall be added to the price on account of the insecurity of the debt. This insecurity •exists in various degrees, from a slight shade below absolute solvency to the mere chance of payment which a reckless trader, tempted by the hope of enormous gains, may take in a sale to the utterly worthless. And if insecurity of the debt be an element of price, it should be graduated in every case by the degree of risk arising from the character of the particular debtor. No court has ever undertaken such an inquiry, and no court could make it satisfactorily. Besides, in a proceeding to enforce , the collection of a debt it would be a strange anomaly that the court should increase the amount of the debt upon the ground, not that so much was due and ought to be paid, but on the supposition of the inability of the debtor to pay it — thereby increasing the inability. On the theory that inability to pay is a good ground for increasing the price, there must be an ever-increasing price to justify this continuing and progressive diminution of ability to pay. It was shown that the prices charged were those agreed on at the time each delivery of the goods was made. We think the •chancellor rightly declined to hold the purchaser’s bound by these prices. Proof of them was competent, and if nothing more had been shown in evidence, such proof would have warranted a decree for the amount thus agreed on. But as soon as proof was made, as it was in this case, that the prices charged and assented to by the customers were exorbitant, largely more than the reasonable value of the goods, and having for their justification only the alleged insecurity of the debt, then the agreed price ceased to be a proper standard in determining the controversy. Ordinarily, in the absence of fraud or imposition, the price agreed on is binding on the parties. But when the price is so exorbitant that, in the language of — 459 — Lord Thurlow in Gwynne v. Heaton, 1 Bro. C. C. 23, “the inequality is so strong, gross, and manifest that it is impossible to state it to a man of common sense without producing an exclamation” at its injustice, it would require the clearest proof of the bona fides of the transaction to make the bargain stand. In such a case it should be shown that the parties treated on equal terms, and that no advantage was taken of the ignorance or necessities of the buyer. When this appears, there is no relief against the consequences of folly and imprudence. But that is not the case here. The seller was already under an obligation to furnish the goods at a reasonable price. The parties were not on equal terms. The customer had encumbered all, or the principal and essential part of his means of obtaining credit, and therefore was not free to decline the purchase of the supplies because the price charged was unreasonable. Under these conditions, the price fixed loses most, if not all of the elements of a free contract; it was dictated by the seller, and acquiesced in by the purchaser from an overruling necessity. The seller was bound by his contract, on acfcepting the deed in trust, to furnish the goods at a reasonable price. His refusal to carry out this contract was an act of bad faith, and the extorted assent of the purchaser to the price fixed by the seller was without consideration, and void. We do not think that Paxton had the right to furnish supplies in derogation of Langsfield’s right under the deed of trust, after he had notice of it. Langsfield was not requested by Paxton to furnish the supplies necessary to raise and gather the crop, nor notified that Paxton would furnish them in case he failed to do so. The decree is reversed and cause remanded, with instructions to restate the account according to the principles announced in this opinion.