97 Ala. 674 | Ala. | 1892
— The action is brought by appellants to recover damages for the breach of an agreement for the sale of eight hundred sacks of dried grapes made by Stollenwerck & Co. as agents of defendants. The case- was tried by the City Court without a jury, and judgment rendered for defendants. The sale of the grapes by Stollenwerk & Co. at three and a half cents per pound f. o. b. to be delivered in September and October following, and that the intention and understanding of these parties was, that the sale was a finality ; also, that defendants refused to deliver the grapes, are uncontroverted facts. The only disputed question of fact relates to the authority of Stollenwerck & Co. to bind defendants by the contract of sale, without first submitting it for their acceptance or rejection.
Defendants, who reside and are doing business in California, while conceding that Stollenwerck & Co. are their agents or brokers in Birmingham, Alabama, to sell dried fruits, claim that they were only authorized to make contracts of sale subject to confirmation. That such is the nature and extent of their general authority as shown by the letter of instructions, dated July 9, 1890, sent by defendants to them, and by the general custom of trade, of which, plaintiffs, having been engaged in the same business in Birmingham for several years, are chargeable with notice.
The question then arises, whether authority, express or implied, was subsequently conferred to sell the grapes at three and a half cents per pound? Plaintiffs claim that such authority is implied from a telegram sent by defendants to Stollenwerck & Co. when interpreted by the custom and usages of the trade.
The law presumes that when a commercial agency is to be exercised, in the absence of limitation or prohibition, it is to be conducted in the mode authorized and justified by the
The telegram referred to was sent by defendants to Stollenwerck & Co. July 18, 1890, and is as follows: “Can not offer dried grapes below 3¿ f. o. b., have advanced to 3J.” This telegram was in response to one sent by Stollenwerck & Co. to defendants, the day before, of which the following is a copy: “Ormsby offering dried grapes 4.70, can’t you let us meet that price?” The evidence shows a custom or usuage of the trade to the effect that a telegram sent by the principal to the broker giving a price, without any stipulation in the telegram that sales made at such price shall be subject to confirmation by the principal, is authority to the broker to sell finally and unconditionally at that price, no matter’what the prior instructions were. This custom is testified to by two witnesses, whose testimony is uncontradicted. True, Isadore Jacobs, who represents defendants, testifies, “none of our letters or telegrams to Stollenwerck & Co. instructed them to sell dried grapes, our instructions being to take orders for dried grapes subject to confirmation, and even if letters or telegrams had been sent instructing brokers to sell, it would be understood that they could only sell subject to confirmation unless specially stated, you may sell without confirmation.” It will be observed that the witness does not deny the existence of the custom, but only testifies to the private understanding between defend
The measure of damages is the difference between the price, which plaintiffs agreed to pay for the grapes, including cost of transportation to Birmingham, and the market price at Birmingham at the time of delivery, with interest. Under the evidence, we assess the plaintiffs’ damages at the sum of nine hundred and forty-five dollars.
The judgment of the City Court is reversed, and a judgment will be entered in this court in favor of the plaintiffs for said sum of nine hundred and forty-five dollars, together with the costs in this court and the City Court.
B.eversect and rendered.