J. M. Conway & Co. v. Lewis

120 Pa. 215 | Pa. | 1888

Opinion,

Mr. Justice Williams:

Conway et ah, defendants below, were commission merchants. Lewis consigned three bales of yarn to them for sale. It was represented to bo a 20-cut yarn worth at that time about forty-five cents per pound. The bales were tested by reeling and weighing samples from them, and the yarn, as Conway alleges, was found to be not an even 20-cut, but an uneven and inferior article ranging from eighteen to thirty cuts. Efforts were made by Conway et al., to sell the yam, but the highest price offered was, as they allege, thirty cents per pound. They wrote to Lewis the result of their efforts to sell, and the price they were offered, and asked for instructions, but before an answer was received they decided to close out the consignment at the price offered and made the sale accordingly. Lewis denies that the yarn was an uneven and inferior article, insists that it should have brought forty-five cents, and brings this suit to recover the difference between that price and the price at which it was sold.

At the conclusion of the evidence on the trial in the court below, the defendants submitted a series of points, in the first of which they asked the court to instruct the jury that “unless the jury can find from the evidence that the defendants were guilty of breach of orders, fraud, or negligence, then the verdict must be in their favor. ” This was affirmed without qualification. The second point narrowed the general proposition contained in the first to meet the defendants’ view of the evidence, and asked the court to say that “there is no evidence of breach of orders, or fraud on part of defendants, therefore it must be proved that they were guilty of negligence to entitle the plaintiff to recover.” To this the learned judge replied: “ I affirm this point with a qualification: if the defendants wrote for orders, and sold before getting them, while this was not a sale against orders, yet it was a sale without orders and would constitute negligence on the part of the defendants. ”

We cannot agree to this definition of negligence. The consignment of the goods to the defendants for sale, without special instructions and without limit as to price, conferred upon them the right to exercise their own judgment in the sale. They were bound to the use of their best judgment in view of all the circumstances, and were neither bound to write for orders, nor, having written, to wait for a reply. It might have been prudent to wait for the reply, but their duties as factors were not changed, nor their powers diminished by the fact that they had written for directions. Until the answer was received they were at liberty to sell upon their own judgment, and if acting in good faith were entitled to protection. The general rule is clearly stated in 1 Pars. 363, in these words: “ If the consignor desires to limit the price at which his goods are to be sold, he should say so in express terms, and if he omits to do so, the consignee has the right to consider the sale of the goods as referred to his discretion. ”

If the consignees had not exercised their discretion before instructions came, then the directions of the owner set the limits within which their discretion must thereafter be confined; but if they had made the sale the questions were whether they had acted in good faith, and with a due regard to the duty they owed the consignors. This was for the jury under the evidence in this case, and should have been submitted to them. The assignments of error all relate to this subject and are all sustained.

Judgment reversed, and venire facias de novo awarded.