| Conn. | Jun 15, 1854
We think the ruling at the circuit correct, in regard to the measurement of the lumber. The object of inserting in the bill of lading a stipulation, that it should be measured on the deck of the vessel, is a little doubtful. It would seem that the owner could have no interest in the plan of measurement; and, as the instrument was not signed by him, but by the plaintiff alone, it is probable, that the clause was inserted rather for his own than for the shipper’s benefit. He might think it important to have the lumber measured before it left his ship, that there might be no danger of its being taken from his possession, before the freight was paid. If this was the object, then it would seem, that the plaintiff would have power to waive its strict performance. If, however, the stipulation was for the mutual benefit of both parties, or was inserted for that purpose, it was done to enable them both to be present and see to its correct measurement, and after the death of the consignee, there being no other agent of the owner in a condition to see it measured, the plan of measurement was rendered wholly immaterial. The defendant could not be present by any other agent than
The charge of the court, in respect to the plaintiff’s attempted sale to himself, through the agency of Slate, was correct.
He could not be both vender and purchaser of his principal’s property, and the pretended sale to himself was simply void.
On another point we think the court fell into an error, which may have influenced the jury, in their estimate of damages, and a new trial must, therefore, be granted. The motion shows that, subsequently to the attempted sale to himself, the plaintiff disposed of a portion of the lumber, by sales to third persons; and he admitted, that these sales were made at a much higher price than thirty-five dollars per thousand feet. The sale to himself being void, he, of course, continued to hold the lumber as the property of the defendant, and, whether he was obliged to sell it is of no importance,—he did, in fact, sell it, and the question was, what allowance he should make for the defendant’s property thus sold. The court charged the jury, that he was only bound to account to the defendant, for the actual value of said lumber, as it then was, at the port of San Francisco; and that he was not bound to account for it, at the prices he received for the several parcels sold by him. This charge seems to us erroneous, under any aspect in which it can be viewed. If the plaintiff was, under the circumstances, the
On the other hand, if it be assumed that, in his subsequent sales to third persons, he was acting tortiously, and, without any authority, was disposing of the defendant’s property, the defendant would still have the right to affirm the sales, as made for his benefit, and to claim the amount which the property brought.
It is true, the defendant did not claim that the court should instruct the jury, that the plaintiff must account for such portions of the lumber as he sold to third persons, at the prices which he actually obtained for it, and, had the court omitted to give any instruction on the subject, the only point would have been, whether there was any error, in omitting to instruct them, that the plaintiff was bound to obtain the highest price for which the lumber could be sold in parcels; had the court merely omitted to make the charge claimed by the defendant, we should have had more doubt, in respect to the granting a new trial; but, as the jury may have been misled by the instruction which was given, the only course which can be taken is to grant a new trial.
In this opinion the other judges concurred, except Church, C. J., who was disqualified.
New trial to be granted.