11271 | Ga. Ct. App. | May 12, 1920
Dissenting Opinion
dissenting. I cannot agree with the majority opinion of the court. The defendant was simply the agent of the plaintiff, and the physical possession of the cotton was that of the agent at Atlanta, Georgia, and not at Alma, Georgia. The principal adopted the telegraph company as the means of communication between himself and his agent, the defendant, and this action authorized the agent to constitute the telegraph company as a subagent for the purpose of communication between the principal and agent. The agreed statement of facts shows that the telegram sent by the defendant company to the plaintiff contained the words “f.o.b. Atlanta,” and that by mistake the telegraph company transmitted the message “f.o.b. Alma.” The mistake was the mistake of the telegraph company. The failure of the defendant to note that the reply telegram read “ f.o.b. Alma ” was a palpable and patent error, and I cannot say that the agent, who was simply a warehouse company, should be made to suffer for this innocent mistake. The cotton was sold not to the agent, but by the agent to third persons, for the best obtainable price f.o.b. Atlanta. If any right of action existed in behalf of the plaintiff against any one for this mistake in the telegram, it was against the telegraph company and not against the plaintiff’s agent in Atlanta. See Morris v. Warlick.
Another reason why I cannot concur with the majority opinion is that the petition itself in paragraph 7 alleges that the defendant became indebted to the plaintiff for said cotton at the rate of thirty and five eighths cents per pound f.o.b. Alma, Georgia. The defendant being the agent of the plaintiff, a fair inference from this allegation wotild be that the cotton had been sold by the defendant at that price f.o.b. Alma, and that the defendant had failed to account to him for a part of the purchase-price actually received for the cotton. This is more clearly set out in the 8th paragraph of the petition, in which the plaintiff alleges that the cotton weighed 69,383 pounds, and at the price f.o.b. Alma, would have amounted to $21,248.54, but that the defendant had accounted to him for only $20,807.51, leaving a balance due of $441.03, which balance the plaintiff claimed, together with lawful interest. If the defendant in fact had sold the plaintiff's cotton for the larger sum and had failed to account for the difference, this conduct would have amounted to a conversion, and the suit would have been for a tort. The agreed statement of facts does not sustain the petition as to the amount of money received by the defendant for the cotton, nor does it show that it was sold f.o.b. Alma. I am therefore constrained to the conclusion that as a matter of law the mistake in the telegram was so patent (the plaintiff knowing that the cotton was stored in Atlanta) that the defendant was not liable to the plaintiff, for this reason, as well as for the other reasons above given.
Lead Opinion
1. Where a warehouseman, who has cotton on storage for the purpose of selling it for the owner, communicates to the owner an oiler which the warehouseman has received from a prospective buyer to buy the cotton, and the owner accepts the offer and authorizes the warehouseman to make the sale, there arises a contract between the owner and the warehouseman authorizing the warehouseman to sell the cotton upon the terms of the offer, and a sale by the warehouseman at a less price constitutes a breach of this contract, and the warehouseman is liable to the owner for the difference.
2. Where such a warehouseman was authorized by the owner by telegraph to sell the cotton “ for best basis obtainable,” and the warehouseman replied by telegraph that there was no market that day, but that he would “sell cotton best advantage to-morrow,” but on the morrow, without acting upon such instruction, the warehouseman communicated to the owner, “ subject to immediate reply,” a special offer which he had received for the sale of the cotton, the warehouseman thereby waived the right, if he had any, to sell the cotton under the authority which he had received the day before. Moreover, the instruction from the owner to the warehouseman to sell the cotton “ for best basis obtainable,” being by telegraph and containing authority to sell a commodity which, as is well known, fluctuates from day to day and from hour to hour, is to be construed as authority for an immediate sale only, and not for a sale upon the day following.
3. Where the warehouseman communicates with the owner by telegraph and informs the latter of an offer which the warehouseman has received for the cotton, “ f. o. b. Atlanta,” and the owner replies that the offer is accepted “'f.o.b., Alma,” the warehouseman has authority to sell the cotton “f. o. b. Alma,” and not “f. o. b. Atlanta,” and where he sells the cotton “ f. o. b. Atlanta,” which is at a lesser price than “ f.o.b. Alma,” the owner may sue for a breach of contract to recover the difference. This is true notwithstanding the fact that the telegraph company, in transmitting the telegram from the warehouseman to the owner, erroneously caused it to read “f.o.b. Alma” and the owner understood that he was accepting in its entirety the offer communicated to him by the warehouseman.
Judgment reversed.