Pope Metal Co. v. Sandoval Zinc Co.

Mr. Justice Holdom delivered the opinion of the court. The evidence clearly establishes that Trench & Co. had authority as the broker of defendant to make the sale of 50 tons of spelter, which it did, for its account, to plaintiff on September 13, 1905. Not only was the authority sufficient, but the sale was expressly and in terms ratified by defendant in its letter of same date confirming the broker’s telegraphic report of the sale. While two days thereafter there was an attempt on the part of defendant to avoid the sale, in a letter to Trench & Co. returning the papers, yet they accepted a return of the papers made by Trench & Go., and not until September 27, 1906, did defendant actually repudiate the sale—not by notice to plaintiff, but to its brokers. Defendant, however, receded from its attempt at repudiation by asking Trench & Go. for shipping instructions October 4, 1905, and thereby again ratified the sale which its brokers had made to plaintiff. We therefore have a contract made originally by an agent—the broker—with authority, and a double ratification of the contract by the principal. But defendant finally, and without any logical reason therefor, on October 28, 1905, refused to carry out the contract and repudiated its obligation in virtue of it. With these repeated ratifications of the broker’s actions in making the contract, we are little concerned with the question, argued at some length, in relation, to the extent of the broker’s authority, or the power of Trench & Co', to bind defendant in the terms in which the contract was made. Nor are we able to discover that the contention as to freight rates injected into the case by defendant, is of any moment. If the term "E. St. Louis basis” meant anything else than a reference to the- rate of freight obtaining at that point, or, as commonly understood, goods to be ££F. 0. B.,” free on board cars at the point of shipment, it was a latent ambiguity created by defendant in the use of a vague term. If these words are of doubtful import, then he who created the doubt must, under well-settled legal principles, have' it resolved against his interest and in favor of the party upon whom he caused it to be imposed. Foster v. Rockwell, 104 Mass. 167; Diversy v. Kellogg, 44 Ill. 114. But even these questions are without any significance if we read the record aright, because, as it clearly shows, plaintiff was willing to accept shipment at either E. St. Louis or Sandoval. Had defendant the right, in the first instance, to rescind the contract, it should have- proceeded so to do without delay, at the earliest moment practicable," and notice of rescission must be given to the party in interest, for in no case conld defendant rescind by notice to its own broker of its intention. Johnson v. Jones, 4 Barb. 269; Diversy v. Kellogg, supra. Lord Ellenborough’s statement in Pickering v. Busk, 15 East. 38, that “a common broker employed in the ordinary course of his trade, is so far a general agent as to have power to bind the principal to third parties by contracts within the scope of the employment, whether the terms of such contract be in accordance with his private instructions or not,” is a rule applicable in determining the power' of Trench & Co. to bind defendant, in its contract with plaintiff, including the terms of shipment embodied in it. Lobdell v. Baker, 42 Mass. 193. Defendant’s contract was for September delivery, and it should have made delivery during that month; but it failed, and it cannot now be allowed to gain any advantage through its own delinquency. Moreover, defendant vacillated in its action and again, on October 4, 1905, ratified the contract by asking for shipping instructions. It is true, it at the same time requested a new contract, but this it had no right to demand. Not until October 28, 1905, did defendant finally repudiate the contract and refuse to perform, in a letter to its brokers, who, on the thirtieth, communicated such action to plaintiff. In buying the spelter the next day in open market at New York, F. O. B. East St. Louis, plaintiff acted with sufficient promptness. Plaintiff had a right to assume, up to the time when defendant finally repudiated its contract, that it would perform the same according to its terms. From the time that the refusal of defendant to carry out the contract came to the knowledge of plaintiff, it had the right to calculate its damages. Williams v. Woods, 16 Md. 220. Plaintiff filled the contract the day following by buying the spelter in the New York market F. O. B. East St. Louis. The measure of damages was formulated upon correot principles applicable to cases of this nature. Such damages suffered by plaintiff through defendant’s refusal to perform its contract, is the difference between the contract and the market price at the time of refusal. Thompson v. Woodruff, 7 Coldwell (Tenn.) 401; Diversy v. Kellogg, supra. The spelter was bought for plaintiff by defendant’s own broker in the New York market, F. O. B. Bast St. Louis, promptly after knowledge of repudiation. This was sufficient to fix the market price of spelter at that date as a basis of calculating plaintiff’s damages. Objections are made as to the admissibility of some of the evidence contained in the depositions read by plaintiff on the trial. As the trial was before the court without a jury, we will assume that the learned judge who presided based his judgment on relevant testimony, to the exclusion of all to which objections made could be sustained. An examination of the propositions of law held and refused satisfies us that the court’s action thereon was without error. The counsel on both sides of this case filed abstracts of the record—appellee one in addition to that filed by appellant. They have equally failed to comply with the rule in relation to “indexes.” All the exhibits are referred to by number and letter only. Such an index, necessitating an examination of all the exhibits in an effort to find the one needed, is a hindrance rather than a help to the reviewing court, imposing upon it labor which the rule, was promulgated to obviate. The judgment of the Superior Court being without error is affirmed. Affirmed.