15 Mo. App. 322 | Mo. Ct. App. | 1884
delivered the opinion of the court.
This was an action for losses, including commissions and telegrams, upon a transaction whereby five hundred barrels of pork were sold for the account of the defendants on the Chicago Board of Trade, under circumstances hereafter stated. There was a verdict and judgment for the plaintiff.
As to the parties to the action. The action was originally brought by Melville S. Nichols and George Nichols, of Chicago, jointly with Ewing Hill, of St. Louis. Subsequently, Melville S. Nichols assigned the cause of action to Hill; the. latter was substituted sole plaintiff by consent of the defendants, and thereafter filed an amended petition as such. George Nichols never had any interest in the transaction, and he has passed entirely out of the case. The status and relation of the parties at the time of the transaction in question were as follows: The plaintiff, Hill, was a broker doing business on the Merchants’ Exchange in St. Louis, under the name of Ewing Hill & Co. The de~
The transaction in controversy was this: On the 29th of June, 1880, the plaintiff, Hill, and the defendant, A. J. Morris, of the firm of Morris, Cox & Co., met on the Merchants’ Exchange in St. Louis, and there Morris gave to the plaintiff an order to sell five hundred barrels of pork for August delivery in Chicago. Thereupon Mr. Hill sent to Mr. Nichols in Chicago the following telegram : —
“ M. 8. N. & Co.: — Sell five hundred August pork. Morris, Cox & Co.”
(Sigued) “ E. H. & Co.”
A few minutes later the following telegram came back to the plaintiff from Chicago :
“ JE. Ii.: — Sold five hundred August pork, ninety-seven and a half, order of Morris, Cox & Co.”
The testimony indicates that the plaintiff immediately exhibited this telegram to the defendant, Morris, who looked at it casually, and told him that it was all right. When Morris had the conversation with the plaintiff on the 30th of June he. was all ready to start for Colorado with his family, on a journey of recreation, and did start that evening. In that conversation he gave the plaintiff certain instructions as to the manner in which the
Evidence was offered by the plaintiff tending to show a general custom in the great commercial cities of the United States to the effect that, where sales of provisions are made for future delivery by one dealer executing the orders of another dealer, the dealer making the contract becomes per
Contrary to the expectations of Mr. Morris, almost immediately after he made this sale, the price of pork began to advance rapidly. Mr. Nichols demanded $500, and then $1,000, as margins, of the plaintiff. The plaintiff began to telegraph to Mr. Morris as early as the 2d of July; and when, on the 6th of July, Mr. Morris arrived at Manitou Springs in Colorado, he found several telegrams from the plaintiff informing him of the rapid advance in pork, and calling upon him for margins. The first of these, dated July 2d, ran thus : —
“A. J. Morris: — August pork twelve sixty-five ; called five hundred margins. Please respond, or instruct your firm to do so. Answer.
“ Ewing Hill & Co.”
The second, dated July 6th, ran : —
“A. J. Morris:—August, thirteen dollars. Have you responded to margin called?
“ Ewing Hill & Co.”
“A. J. Morris: — August pork thirteen ten and strong ; called one thousand. Answer.
“Ewing Hill & Co.”
And on the 7th of July, one running thus: —
“A. J. Morris: — August thirteen ninety. Have you responded to margin? Called one thousand. Answer.
“ Ewing Hill & Co.”
On the 7th of July, Morris sent a telegram from Manitou Springs to the plaintiff, as follows : —
“Message just received. Can’t say what will do; will write.”
On the following day the plaintiff received a night message from Morris, dated Manitou, Colorado, July 7th, as follows: —
"Ewing Hill & Co., St. Louis: — 50 cts. limit was instructions. Let Chicago carry without margin till decline.
“ A. J. Morris.”
On the 7th of July, the plaintiff again telegraphed to Morris as follows, apparently referring to the first message to Morris: —
"A. J. Morris:—Message received; unsatisfactory; must have immediate margin or close deal. Cox says your firm will respond on telegraphic instructions from you. Please answer immediately. August closed at $14.05 strong.
“Ewing Hill & Co.”
On the 8th of July the plaintiff sent the following telegram to Morris: —
‘‘A. J. Morris: — Bought five hundred August pork, Chicago, $14.25, to close your deal.
“ Ewing Hill & Co.”
“ To M. S. N. & Co.; — If strong, buy five hundred August pork, Morris ; don’t fail to act promptly if at all.”
When the month of August came around, Nichols received the pork which he had thus bought, and delivered it to one Crosby, to whom he had made the sale of June 29th at $11.97V2 per barrel, and took up margins of $1,000 which he had been compelled to pay on the transaction, before he closed it out.
At the close of the plaintiff’s testimony, the defendants asked for an instruction that, on the evidence, the jury must find for the defendant, which the court refused.
Whether this instruction was properly refused must, we think, depend upon the view which is taken of the relation of the three parties, Morris, Hill, and Nichols, to each other. The position of the defendants now is that Morris and Hill were principal contractors; that Nichols was merely a contractor with Hill; in other words, that Hill was the agent of Morris and Nichols merely the agent of Hill; that there was, hence, no privity of contract between Morris and Nichols; that Nichols, therefore, had no right of action directly against Morris ; consequently, that Hill,who sues here as the assignee of Nichols, and only upon such right of action as Nichols had, has neither stated nor proved a case which entitled him to recover. The leanied counsel for the plaintiff answer this position by saying that Morris and Nichols were the principal contractors, and that Hill was merely the del credere agent of Nichols ; and, at all events, they agree that this objection can not be made available here, because it was not made in the court below. We do not see from the record that, by any objection offered to the testimony, or by any instruction tendered, this question
Our yiew, then, upon the question now raised is that 'Morris and Hill were principal contractors; that, by the contract between them, Hill made himself the agent of Morris to sell the five hundred barrels of pork for future delivery on the Chicago market, using his own instrumentalities to effect the sale; that he was not constituted an agent to appoint another agent for this purpose, but that he was an independent contractor ; that Nichols was merely
In other words, we think it clear that the position of Nichols was that which is sometimes termed in law that of a sub-agent; and the general rule unquestionably is that the principal, on the one hand, has no right of action against the sub-agent ( Trafton v. U. S., 3 Story C. C. 646, 656 ; Hoover v. Wise, 91 U. S. 308, 311 ; Homan v. Brooklyn Life Ins. Co., 7 Mo. App. 22) ; nor, on the other hand, has the sub-agent a right of action against the principal ( Corbett v. Schumacher, 83 Ill. 403), where the position of the intermediate agent was that of an independent contractor or undertaker. The application of this rule is, indeed, surrounded with embarrassments, but there is no difficulty in applying it to the facts of this case. A single suggestion will show its appropriateness in its application to these facts,. Suppose that when Morris gave the order to Hill on the floor of the Merchants’ Exchange of St. Louis, on the morning of the 29th of June, 1880, to sell five hundred barrels of pork for August delivery on the Chicago market, Hill had immediately telegraphed the order to Nichols at Chicago, and Nichols had negligently failed to execute is until the next day, by which time the price of pork had advanced $1 per barrel. Morris, by this negligence, might have sustained a loss of $500. But suppose he had brought an action for such loss against Nichols, would it not have been a perfectly good answer for Nichols to say, “ I had no contract with you. The order which I received came from Hill.- Hill was your principal in the contract, and you must look to him?” We think that there can be no doubt that, on such a state of facts, Morris
If we are correct in these views, it is clear that the plaintiff’s evidence entirely failed to prove the cause of action stated in the petition, and, therefore, the instruction fora non-suit ought to have been given.
The judgment is accordingly reversed and the cause remanded.