188 Iowa 806 | Iowa | 1920
Lead Opinion
The contract sued on was one of two contracts, made at the same time, and pursuant to file same negotiations. They are both identical in all their terms, except that one called for a delivery of 2,200 lambs on September 1, 1916, and the other called for a delivery of 2,500 lambs, on September 25, 1916. Under the first contract, known in this record as Exhibit 13, the lambs were delivered on Sepiember 1st, and paid for. Under the other contract, the lambs were delivered on September 25th, but were not paid for. Plaintiff’s suit is predicated upon this contract, known in this record as Exhibit A.
The defendant’s cross-bill, however, treats both contracts as one, and asks to reform them both, and for relief under them, as so reformed. The general nature of defendant’s contention is that the plaintiff agreed to guarantee a general average weight of all the lambs at 50 pounds, and a considerable percentage thereof at 60 pounds. This contention is denied by the plaintiff. If the defendant’s contention at this point is sustained by the record, he is entitled to the reformation prayed, and to the consequent relief. If defendant is not entitled to such reformation, the
“This is to certify that I, C. P. Halver, of Flandreau, S. D., have this 25th day of August, 1916, bargained, sold and agree to deliver to Higgins Sheep Com. Co., the following described live stock at time, place, prices and under the conditions mentioned and described below.
“I guarantee the title to the live stock which I have sold under this agreement, and guarantee the stock when delivered will be in a merchantable, marketable condition, free from any and all infectious or contagious diseases, which guarantees state and Federal inspection.
“In consideration of and to complete this contract, I hereby acknowledge the receipt- of $625 as an advance payment, the balance to be due and payable upon the complete delivery of the stock and fulfillment of this contract.
“Description of Live Stock Sold.
No. Head 2,500
Description Lambs
Price $4.90 per Head
Time & Place of Delivery F. O. B. Cars Sept. 25, 1916, Hettinger and Griffin, N. D. In proportion to total number loaded at both places. These lambs not to be sorted, or topped out for mutton.
(Signed) C. S. Halver.”
We need not set out Exhibit 13, which is identical, except as to number of lambs (2,200) and date of delivery (September 1st). The negotiations which resulted in these contracts began on the morning of August 19th, and continued up to the time of their consummation, August 25th. One week later, delivery was made, under Exhibit 13. These
“Exhibit 3.
“Lemmon, S. D., Ang. 17, 1916.
“Higgins Sheep Com. Co., Sioux City, Iowa:
“Wire offer on four thousand to be weighed at Grifan Oct. 1st. Nothing under fifty pounds. To average sixty pounds or better. Halver.”
“Exhibit 6.
“Sioux City, August 18, 1916.
“Halver, Sheep Man, Lemmon, S. D.:
“What will you conti’act four thousand lambs average sixty Griifin October first delivery. Higgins.”
“Exhibit 5.
“Sioux City, August 18, 1916.
“Wire me at once how much per hundred you will pay me for twenty-five hundred to four thousand head delivered at Griffin or Hettinger October first to weigh average sixty pounds. Wire me your best offer as I have two offers now and will sell at. the highest price this afternoon. Will sell by weight or head. C. P.. Halver.”
“Exhibit 4.
“Sioux City, Iowa, August 18, 1916.
“C. P. Halver, Sheep Man, Lemmon, S. D.:
“My man Baker leaves for Lemmon tonight. Will try buy your stuff. Higgins Sheep Com. Co.”
Pursuant to the last telegram, W. M. Baker, employee of the defendant, arrived at Lemmon, South Dakota, August 19th, and started upon an inspection of the lambs owned by plaintiff, under executory contracts for future de-livei’y; and such inspection continued for a period of 5 days. Baker was a man of 17 years’ experience in the business. Halver was the owner of 18,000 or 20,000 lambs, in the sense
“Lemmon, So. Dak., Aug. 24, 1916.
“Higgins Sheep Co. Co., Sioux City, Iowa,
“Dear Sir: I got into Lemmon Saturday afternoon and saw C. P. Halver. He and Halsted are the same. Halver lives at Flandreau, S. D., and has bought up a lot of lambs and ewes out here.
“I went out of here Sat. afternoon and we covered a large country south and west. He showed me a lot of lambs. I was not in reach of a wire until Wed. morning when I phoned a message to Lemmon for you from Bison. Reached Hettinger Wednesday afternoon and drove here last night; will go back to Hettinger this morning; will wait to hear from you there. Halver has around 25,000
“He is going to cut out and keep 1,600 ewe lambs. But first, he is receiving at G-riffin and Hettinger the 1st of Sept. After counting each man’s flock, he will turn them all together, then cut out his ewe lambs at both places to make the 1,600. Then from what is left if he sells any to deliver F. O. B. he will cut ten each way through the chute until enough are cut out to make the count. Some of the bands at both places are good, some are not. There will be-about 25 per cent fat I think, but they are not very heavy, would weight pounds on market. And if the sellers sort as he says, the feeders will run down to 38 or 40 pounds. He seems very set on $4.90 per head, which is too high as they would not pay out even if all fat at the weights. He wants 25 cents per head down. He has cut out the Sept. 10th shipment and will only ship Sept. 1st and 25th. He has bought from 50 to 350 old ewes from the different bands and is selling them at $4.75 to $5.25 per head. The ewes in some places have lots of needles and some of the lambs also.
“I don’t think 1 would care to contract lambs or ewes from him at present the way he wants to handle them. You might be able to do better by being present shipping day and buy just certain bands then. He has a lot of this stuff sold around Flandreau. Moxon has ordered 1,000 lambs. Halver is looking for too big a profit. And I don’t see any money in them except the chance to buy at shipping time and that is slim. I met Mr. Waite last night and this morning and he said as I had seen conditions he would not write. I will go to Hettinger today and wait there to hear from you. Yours truly, W. M. Baker.”
On the same date, Baker received from his principal
“Sioux City, August 24th, 1916.
“Walter M. Baker, Hettinger, N. D.:
“I want those lambs and will buy them provided I can get you to answer my inquiry so that I can form a correct opinion of what I am getting. Wire me how many lambs are for sale, if they are South Dakota or Montanas, ‘kind of wool, what the entire band will average there, how many deliveries, what dates, how many each delivery, what percentage are fat in the entire bunch, how light they will run down, what percentage will be light, what per cent will weigh over sixty, lowest price delivered on cars, how much needed on contract. Stay where you are until further notice. Give me quick action. Higgins Sheep Com. Co.”
Baker answered this telegram with Exhibit 7, as follows :
“Lemmon, S. D., Aug. 24, 1916.
“Higgins Sheep Commission Co., Sioux City, Iowa:
“About seven cars Sept, first. Seven to ten Sept, twenty fifth. Twenty five per cent first shipment fat, forty of second, tail ends thirty five to forty lbs. Dakota sheep, Cotswold, half Ramboulia. Average fifty lbs. Fifteen per cent sixty lbs. Rate Sioux City forty cents. Wire ans. Hettinger. See letter. W. M. Baker.”
.On the following day, Baker received from his principal the following telegram, known as Exhibit 15:
“Sioux City, August 25th, 1916.
“Walter M. Baker, Hettinger, N. D.
“If those lambs clean from burrs, needles or culls thrifty and all can be bought at price named deliveries as stated written contract describing the lambs by brand fully identified with twenty-five to fifty cents per head paid down balance on delivery on cars agreeing now just how many there will be, not so many cars but so many head of lambs
The contracts in suit were entered into on the evening of that date. Exhibit 8 was shown by Baker to Halver. Halver participated in formulating Exhibit 7, said telegram being in his handwriting, except the words, “See let ter.” Baker testified that Halver agreed to guarantee the estimates appearing in Exhibit 7, whereas Halver testified in denial of this, and' that these estimates were those of Baker, who had expert knowledge and judgment on the subject; that all these estimates had been incorporated by Baker in a lengthy telegram, just previously written by Baker, and that Exhibit 7 was a condensation of such lengthy telegram.
The conflict of evidence between these two witnesses at this point presents the crux of the case. In order to weigh the relative credibility of these conflicting witnesses, reference must be had to the circumstances antecedent to the contract, and to the conduct of the parties thereafter. Corroboration is claimed for Baker as follows: (1) In the telegram which initiated the negotiations. (2) In the fact that Exhibit 7 was written'by Halver. (3) “In the fact that, immediately after the signing of the contract, Baker wrote a letter to his principal, advising him that Halver had made such guaranty, which guaranty had been omitted by oversight from the contract.
We will not enumerate at this point affirmative corroboration claimed for the plaintiff, but will refer to the same later in the discussion.
As to the initial telegrams, it is clear, in the light of the whole record, that they sustain little relation to the con
As to the telegram, Exhibit 7, Halver is charged with notice of its contents, so far as material. The fact that he acted as a scribe in the writing of it has no other effect than this, there being no charge of fraud or collusion, as between him and Baker. There is no suggestion of guaranty in this telegram. There was none in telegram Exhibit 8, sent by Higgins. There was none in the letter, Exhibit F, written by Baker to Higgins, to which reference is made in the telegram, and of the contents of which Halver knew nothing. Exhibit 7 represented the actual opinion of Baker at the time. This opinion was based upon his inspection: His experience was much greater than that of Halver. Baker understood that. He testified:
As we shall presently see, the recitals of Baker’s letter, Exhibit F, have an important bearing at this point, and we pass it-for the moment. Corroboration is claimed also for Baker in the alleged letter which he wrote to his principal on August 25, 1916, immediately after entering into the contract. The genuineness of this letter is dial: lenged by the appellee, and we shall deal with that phase of the discussion in a later paragraph. This letter is known in the record as Exhibit 25. Baker states therein that Halver was to guarantee the quality and weight, but that this was omitted from the contract through his forgetfulness.
The defendant put in evidence, also, a letter known as Exhibit 11, purporting to have been written by him to Halver on September 5, 1916, after the receipt of the first shipment. The purport of this letter was, in effect, a rejection of the lambs received in the first shipment, as not being in compliance with the contract. No reply to this letter was received by him from Halver. This letter is challenged by the plaintiff as spurious, and as being no part of any actual correspondence. We shall deal with this feature in a later paragraph. The foregoing presents the salient features of defendant’s case, so far as it relates to his right of reformation on the cross-bill. We may .as well set forth here Exhibit C, being the letter by Higgins to Halver on September 21st, pertaining to the delivery to be made on September 25th, to which letter reference must be made in the later discussion. It was as follows:
“Mr. C. P. Halver, Hettinger, N. D.
“Dear Sir: We wired you in response to your telegram saying that our Mr. Baker would leave tonight and meet you at Hettinger. He will also desire to see and accept the lambs purchased on contract. Your wire to us of August 18th offered 2,500 to 4,000 lambs delivered Hettinger or Griffin, average 60 pounds, was the lambs under consideration when we sent Mr. Baker there at that time the purchase was made. Those already shipped do not come up to this average. Mr. Baker advised that owing to the railroad difficulty and congested conditions he received some lambs that he otherwise would not have done under normal conditions. We therefore expect the balance to be up to the understanding, and if you have more of the same kind as per your telegram of this morning we shall be in the market to buy them.
“Very respectfully yours,
“Higgins Sheep Commission Co.,
“JWH.M Per J. W. Higgins.”
With the foregoing exhibits before us, we may proceed to the discussion of the relative weight of evidence on the merits of the controversy.
II. Exhibit F is of prime significance. It represents Baker's understanding, at that time, of Halver’s proposition, and his judgment of the quality and weights of the sheep which Halver proposed to sell. There is no suggestion in it of a guaranty by Halver. On the contrary, it negatives any suggestion of guarantee. The method of selection is specified in the letter:
“Then from what is left if he sells any to deliver F. O. B. he will cut ten each way through the chute until enough are cut out to make the count.’’
From the foregoing, it is evident that the best sheep were not to be culled out for the purpose of this sale. If
This letter is wholly consistent with the contract as actually entered into on the evening of the following day, and is strictly corroborative of the correctness of such contract, as executed, unless it shall appear that, after the writing of the letter, and before the signing of the contract, some change was made in the proposition under considera: tion. After Baker received Exhibit 15, the final telegram from Higgins, he endeavored to get the price reduced, and offered $4.75 per head. This offer was rejected by Halver. There is no dispute about this. Baker testified that, just before the contracts were entered into, Halver agreed to guarantee the weights, according to the telegram, Exhibit 7. The credibility of this particular testimony and its circumstances will be considered in a later paragraph. Sufficient to say, at this point, that we find that there was no change made in the proposition of Halver, as outlined in Exhibit F by Baker. The contracts, as drawn, provided for delivery F. O. B. at Griffin and Hettinger. There is no dispute about this feature. If Halver were to guai’kntee
On this branch of the case, therefore, we deem it clear that the conduct of Baker was wholly inconsistent with any claim of forgetfulness or mistake in the terms of the contract, and that his acceptance of delivery thereunder of the identical lambs contracted for by him was an affirmation of the contract as actually made, and that it is not now subject to reformation upon any ground known to the defendant prior to such acceptance. Needless to say that the delivery by plaintiff and the acceptance and payment by the defendant constituted a full execution of the contract by both parties.
III. Our foregoing conclusion finds further confirmation in the circumstances attending delivery and acceptance of the lambs under the second contract, being Exhibit A. The second delivery was to be made on September 25th. On September 21st, Higgins wrote to Halver the letter Exhibit C, hereinbefore set forth. This letter advised Halver
We are clear that the defendant could not accept these lambs in Hettinger and reject them in Sioux City or in Roscoe. He is not suing for damages for breach of warranty. He is, in effect, rescinding the contract by rejecting the subject-matter on the ground of noncompliance, and treating the same as a mere consignment to a bailee. Baker’s act in selecting and receiving the lambs at Hettinger and consigning them to the four winds must be deemed as having some legal effect. It was either a rejection or an acceptance. It could not be both. It could not be neither. It was not a rejection. He then and there delivered to Halver a receipt for the same, as follows:
“Exhibit B.
“Received of C. P. Halver, 2,160 lambs at Griffin, Sept. 25, 1916.
“W. M. Baker,
“Of Higgins Sheep Com. Co.
“At $4.90.”
This writing was not only a receipt for the lambs, it amounted, in legal effect, to a due bill. The amount due thereunder was a mere matter of computation: “2,160 lambs at $4.90.” Halver could have based his present action upon this due bill alone. This, too, was a clear confirmation of the contract, as actually made. If action had
IV. Let it be supposed that the contract had been drawn so as to include the specifications of the telegram Exhibit 7 as a guaranty. This would have called for 15 per cent to average 60 pounds, and for the whole to average 50. pounds at Hettinger and Griffin. This is the reformation asked for by the cross-bill. 50 pounds weight at Hettinger would not be‘ 50 pounds weight at Sioux City or at Eoscoe. When Higgins directed his clerk to reject the shipment, if it weighed less than an average of 50 pounds at Sioux City, he was directing a breach of the contract in advance, and setting up a standard for the guidance of his clerk to which he was not entitled, even under a reformed contract. The amount of shrinkage which such a shipment would suffer, under the circumstances attending this shipment, is uncertain under the evidence. Under the defendant’s evidence, the shrinkage is estimated at from 2 pounds to 4 pounds per head. Under the plaintiff’s evidence, it could have been 8 pounds. Those weighed at Sioux City were a little more than half of the number delivered. Whether those shipped
Y. There are certain items of evidence in the record which involve the veracity of Higgins and Baker as witnesses. The defendant put in evidence the letter Exhibit 11, which purported to be written by himself/ on September 5, 1916, to Hal'ver. Higgins identified the letter, and testified to mailing the same. The letter is as follows:
“Sept. 5, 1916.
“Mr. C. P. Halver,
“Flandreau, S. D.
“Dear Sir: Referring to the lambs you have shipped on our contract will say that as a whole they do not come up to specifications, of course this consignment is only about 50 per cent of the whole and it depends to some extent upon what the balance are as to how many óf these will go in on our contract, there is an extremely long light ‘tail-end’ many of which are culls and not thrifty, these t could not take at all, and I am not sure just how it would suit you best to have them handled.
“Therefore inasmuch as they are here and not salable as they are, and it will be very expensive to hold them in the yards here until the balance comes, I suggest buying some feed for them near here, dipping and putting them out where they will do the most good for themselves pending the arrival of the balance, then I can use what come within my contract and no doubt satisfactory disposition •can be made of the rest or if preferable you can feed them for market yourself.
“Or if you prefer selling the light end at once we will handle them for. you to the best advantage possible, advising however that just at present there is-practically no demand for these extremely light cully stuff and they will sell very low.
“Kindly give this your prompt attention as if we are
“Very respectfully yours,
“JWH Higgins Sheep Commission Co.”
Defendant also put in evidence Exhibit 25, which purports to be a letter from Baker to the defendant, dated August 25th, and purporting to have been written immediately after the signing of the contracts. This letter was identified by Baker, and the mailing thereof testified to by him. This letter purported to be a report of the contracts entered into, and closed with the following paragraphs:
“Halver agreed and guaranteed to sell and deliver lambs according to description in message sent to you describing weights and condition and per cent of fats and tail ends. He agreed to have lambs of this sort, making them as described. I intended to put description in contract, but forgot same. I will get the message from agent at time of delivery.”
Exhibit 15, which is a telegram from Higgins to Baker, was received by Baker just before the contracts were entered into. Baker testified' that he showed this telegram to Halver before the purchase was made, and that it was at this time that Halver agreed to guarantee weights, and that, thereupon, the contracts were immediately drawn. This telegram has hereinbefore been set forth. The plaintiff contends that Exhibit 11 is a fabrication; that the same is true of Exhibit 25; and that the claim that Exhibit 15 was shown by Baker to plaintiff is manifestly and consciously false.
As to Exhibit 11, the purported letter of September 5th from Higgins to Halver, no such letter was ever received by Halver. Higgins did write a letter to Halver on September 5th, which was received, and which is in evidence. It is entirely silent on the matters appearing in Exhibit 11.
“No more was said to Halver than that there were a great many lambs in there that would not come within the contract.”
And yet, according to his later attitude at the trial, he was, at that very time, holding the shipment as a rejected shipment, and holding the same at Halver’s expense. He was also waiting for a. reply to his alleged letter of the day before. He knew that Halver must have left home for Sioux City before such letter could have reached him by mail. Halver left him that day, entirely unconscious of friction or material dissatisfaction over the shipment. Higgins must have had in his possession at that time Baker’s letter of August 25th, which is Exhibit 25, but he made no mention of it, or of any guaranty, or of any alleged mistake in -the contract. On September 21st, Higgins did write to Halver the letter Exhibit C, hereinbefore set forth. This letter is quite inconsistent with the prior existence of Exhibit 11. Neither is there any suggestion here of any mistake in the contract, nor of any guaranty, except such as shall be implied from the first telegram of August 18th.
When Exhibit 11 was first put in evidence, the defendant testified that it had been dictated by him to his stenographer, and by him regularly mailed. On cross-examination, he was given until the next day to produce the stenographer’s notes. Being recalled on the next day, he testified that the letter was not dictated to his stenographer, but
Turning now to the letter from Baker of August 25th to Higgins, being Exhibit 25, such letter, of course, whatever its contents, was not binding upon Halver. The developments of the trial, however, might have rendered it admissible as corroboration of Baker in his claim of mistake in the contract. From the nature of the case,', the plaintiff cannot prove the alleged spuriousness of this portion of that letter by direct evidence. Reliance is had upon the circumstances. If the letter written by Baker on August 25th, as a report of the purchase, contained this paragraph, then Higgins knew of the alleged guaranty and the mistake in the contract immediately, and before receiving any deliveries. He never mentioned _ any mistake or guaranty in any of the correspondence between him and Halver. He did not mention it in the visit of September 5th. He completely ignored it in his letter of September 21st, wherein he made claim under the telegram of August 18th. The conduct of Baker in ignoring the subject has already been set forth, and need not be repeated. This letter was produced at the last day of the trial. All other correspondence
Baker testified that, before the close of the contracts, he disclosed to Halver the telegram Exhibit 15, hereinbe-fore set forth, and that it was then that Halver agreed to the guaranty. This is denied in, toto by Halver. A perusal of Exhibit .15 contradicts the probability of such a course.
“If those lambs clean from burrs, needles or culls thrifty and all can be bought at 'price named * * * close' the deal but make the best trade for me that you can. The market is lower on feeders expect you to buy them for less.”
To show this telegram to Halver was to advise him that- Baker was under final instructions to pay him his price, unless he could do better. It is undisputed that Baker did make him a final offer of $4.75, which Halver rejected. It is significant, also, that this telegram indicated the specifications to be included in the contract. There was no reference therein to any guaranty. We think the improbability of the truth of Baker’s testimony at this point is so great as to be quite conclusive corroboration of' the testimony of Halver.
Dissenting Opinion
(dissenting). I am unable to concur in the foregoing opinion. As I read the record, it does not sustain the views of the majority as to the contract made by the parties, by the terms of which their rights should be measured. I cannot agree that Exhibit A, or that such exhibit in connection with Exhibit 13, constitutes the entire undertaking of the respective parties, but rather, consider that the correspondence had between the parties, culminating in the execution of the exhibits named, is to be read with them in determining their nature and effect.
The plaintiff was the moving party in the negotiations, and, by tracing the correspondence in its chronological order, the point I am trying to make will be clear.
On August 17, 1916, plaintiff telegraphed to defendant, saying that he had 6,000 lambs for sale, and soliciting an order. To this, defendant at once responded by wire, asking:
“What do you want for 6,000 lambs? What are the de-' liveries, and at what point?”
On the same or following day, plaintiff telegraphed again:
“Wire offer on 4,000, to be weighed at Griffin, October 1. Nothing under 50 pounds. To average 60 pounds or better.”
Still again, on the same day, plaintiff telegraphed once more:
“Wire me at once what you will pay me for 2,500 to 4,000 head delivered at Griffin or Hettinger October 1, to weigh average 60 pounds. Wire me your best offer as I
At this point, defendant responded, saying:
“My man Baker leaves for Lemmon tonight. Will try to buy your sheep.”
It was at this stage of the proceedings that Baker went to Dakota, as stated by the majority. After Baker had made more or less inspection of the flocks, and obtained an offer from plaintiff, he telegraphed to defendant, saying:
“Halver offers 7 cars lambs September 1st Hettinger and Griffin. Average 50 pounds one fourth fat balance good feeders. Ten cars Sept. 25. Some real good. Wire me today Hettinger. Last shipment guaranteed sixty.”
To this message, the defendant answered:
“I want those lambs and will buj them providing I can get you to answer my inquiry so I can form a correct opinion of what I am getting. Wire me how many lambs are for sale; if they are South Dakotas or Montanas, kind of wool, what the entire band will average, what dates, how many each delivery, what percentage are fat in the entire bunch, how light will they run down, what percentage will be light, what percentage will weigh over sixty, lowest price delivered on cars, how much needed on the contract. Give me quick action.”
When Baker received this message, he showed it to plaintiff, and plaintiff himself prepared and formulated the answer, as follows:
“About 7 cars Sept. 1. Seven to ten Sept. 25, 25 per cent, first shipment fat, 40 of second. Tail-ends 35 to 40 pounds. Dakota sheep. Cotswold, half Ramboulia. Average 50 pounds. 15 per cent 60 pounds.”
This message, sent to defendant on August 24, was promptly answered by message to Baker, as follows:
“If those lambs clean from burrs, needles or culls, thrifty and all can be bought at price named, deliveries as
Immediately on receipt of this dispatch, the so-called contracts, Exhibits A and 13, were made by plaintiff and Baker.
It will be seen that Baker’s agency was strictly limited to buying the lambs described, on the terms which had been reported to the defendant, and that this limitation was fully known to the plaintiff; and it seems to me like shutting our eyes to the light, and ignoring the fundamental principles of the law of contracts, which exact fair and honest dealing between buyer and seller, to say that, in this transaction, plaintiff may deliver or tender to the defendant lambs of a quality and value distinctly inferior to those described in his offer of sale, and be allowed to recover therefor a price which had been fixed in consideration of his repeated assurance that the animals he was selling were of a superior and more valuable grade. The clause in defendant’s final telegram, telling Baker to make the best deal he could for his principal, was written in connection with the specific limitations there placed upon his authority, and cannot fairly be construed as being more than a request to secure better terms, if he could; but it surely did not operate as authority to make a more unfavorable bargain than had been reported to the defendant. The plaintiff was in no manner deceived or misled. He had, from the outset, particularly described to defendant the kind and quality of lambs he professed to have for sale. That description, without material variation, was repeated at each step of the bargaining. He knew, also, that, when Baker had reported his offer to defendant, the latter had
Personally, I do not believe any reformation of the contract is required, to entitle defendant to avail himself-of his defense, but think that it is entirely within the province of the court, even in an action at law, to say that the correspondence between the parties, culminating in the execution of Exhibits A and 13, should all be construed together, as containing the agreement between the parties.
The fact that Baker was present in Dakota, and assisted in receiving and shipping the lambs, is not material, for the reason already suggested: that he had ho authority to buy the lambs, if they were not substantially such as had been described by the plaintiff; and defendant was, therefore, under no obligation to repudiate Baker’s act, until it became known to him on the arrival of the shipment in Sioux City.
For the reasons stated, I am of the opinion that the judgment appealed from should be reversed.
