226 P. 222 | Or. | 1924
It is well established in this state that the findings of the Circuit Court in an action at law have the force of a verdict: Section 159 Or. L.; Cannon v. Farmers’ Union Grain Agency, 103 Or. 26, 40 (202 Pac. 725); Stark v. State Industrial Accident Commission, 103 Or. 80, 102 (204 Pac. 151). If there is any evidence in the record to support the findings of the Circuit Court, the judgment of that court must be affirmed.
The plaintiff contends that the telegrams and letters, passing between the parties directly and through their agents, constitute a binding and complete contract in writing, which it is the duty of the court to construe. Correspondence set out in above statement numbered 1 to 14, inclusive: Williams v. Burdick, 63 Or. 41 (125 Pac. 844, 126 Pac. 603); Ankeny v. Young, 52 Wash. 235 (100 Pac. 736); 35 Cyc. 54; 20 Cyc. 256; 27 C. J. 257, § 307, note 22; 7 C. J. 294, § 367, notes 86, 87; 23 R. C. L. 1260; 25 R. C. L. 644, 681; Butler v. Thomson, 92 U. S. 412 (23 L. Ed. 684); Eau Claire Canning Co. v. Western Brokerage Co., 213 Ill. 561 (73 N. E. 430); Merritt
“Received from M. R. Jacobs & Bros., Inc. * * Sales note No. 5162, which we have examined and confirm.”
See also letters numbered 17, 26, 27, 32, 33, 34 and 35. It must be remembered that at the time the defendant wrote the letters and transmitted the.telegrams, numbered 10, 11, 16 and 21, approving the alleged sale, the defendant had no knowledge of the condition embodied in the sales note transmitted by M. R. Jacobs & Bros., Inc., to the defendant. The same condition was incorporated in the bought note delivered to the plaintiff. As soon as the defendant had notice of that condition, it demanded explanations. There was no delay on the part of the defendant in making objection to the condition upon which the alleged purchase was made. There is nothing in the record that indicates, in any degree, that the defendant’s agent had authority, in any manner, to modify the unconditional purchase order. Indeed, the letter from the agent of the defendant, O. C. Bynum, through whom the order was made, indicates that the purchase had been made from the owners of the goods. The fact is that the order was given to other brokers. The letter, dated September 27, 1920, from O. C. Bynum to the defendant, contains this language:
*443 “I note that you were somewhat surprised at our being able to execute your order at the price under the circumstances existing at the time, but we found the goods in second hands, and landed them at our figure.” Letter No. 15.
The fact appears to be that the goods were not owned by the plaintiff at the time the alleged contract was entered into. It appears that it had not so much as given an order for the goods for when the name of the mill was demanded by the defendant, the plaintiff was unable to give the required information.
The contention of the plaintiff that the correspondence, referred to and numbered 1 to 14, inclusive, in the statement herein, constitutes a valid and binding agreement could be upheld if the parties had rested on that correspondence and the broker had not exceeded his authority. Such were the facts in the cases of Eau Claire Canning Co. v. Western Brokerage Company, 213 Ill. 561 (73 N. E. 430), and relied upon by the plaintiff: Williams v. Burdick, 63 Or. 41 (125 Pac. 844, 126 Pac. 603); Ankeny v. Young, 52 Wash. 235 (100 Pac. 736, 738). Nor is the case of Coast Fir Lumber Co. v. Parker, 106 Or. 641 (213 Pac. 617), authority for sustaining the modification of the terms of the alleged purchase as authorized by the defendant. In the latter case, the confirmatory order did not in any wise change or modify the original contract. For that reason, the introduction of the confirmatory order was permitted. The jury was instructed that the confirmatory order was admitted solely for the purpose of showing how the parties dealt and acted in reference to the original contract. In the instant case, the agents of the defendant were given an unconditional order to purchase. The broker in New York modified that order by adding thereto
It is contended by the plaintiff that the provision in the sale note objected to by the defendant was such a provision as the broker was authorized to make, because it was agreeable to the custom and usage in New York City in the cotton cloth trade. Custom and usage are not pleaded. The meaning of language used in framing contracts, and particularly with reference to manufactured articles, may be explained by oral testimony without pleading custom and usage. This is the principle announced in the case of Coast Fir Limber Co. v. Parker, 106 Or. 641 (213 Pac. 617). Testimony is never admissible to prove custom or usage as authority for modifying a contract. In page 648 of the last mentioned case, the court used this language:
“The challenged evidence was received as a means of interpreting the contract and not for the purpose of importing new terms into it or for the purpose of varying terms already in it.”
In the instant case the broker M. B. Jacobs & Bros., Inc., had authority for an unconditional purchase. They attempted to execute that authority by incorporating into the contract the following language :
“If the production of the Southern Mill shall be curtailed during the time above named by strikes, or any unavoidable casualty, the deliveries stall be made proportionate to the production.”
This is clearly adding to the contract authorized by the defendant. It is a material modification of
A broker is an agent with limited authority: 2 Mechem on Agency (2 ed.), § 2397. He is not authorized to vary or change the terms of sale fixed by his principal: 2 Mechem on Agency (2 ed.), §§ 2402, 2407; 4 Am. & Eng. Ency. 968. In Barnard & Bunker v. Houser, 68 Or. 240, 243 (137 Pac. 227), Mr. Justice Burnett says:
“Custom is used in evidence only as a means of interpretation of a contract, and not for the purpose of importing into it new terms: Holmes v. Whitaker, 23 Or. 319 (31 Pac. 705); Savage v. Salem Mills Co., 48 Or. 1 (85 Pac. 69, 10 Ann. Cas. 1065)”; Coast Fir Lumber Co. v. Parker, 106 Or. 641, 648 (213 Pac. 617).
The instant case illustrates the proper function of custom. The witnesses Lowenstein and Shapiro were permitted to explain the various terms used in the correspondence, set out above, such as the amount of sheeting in a carload, what is meant by the description, “31" — 48x48 5.00,” the meaning of the Code word “orchard,” etc.: 17 C. J. 499, § 62e.
“Evidence of usage is allowed not only to explain but also to add tacitly implied incidents to the contract in addition to those which are actually expressed; and where a contract is not in itself a complete expression of the intention of the parties, valid and known usages, if not inconsistent with the express terms, are admissible to supply matters as to which the contract is silent. But where a contract is clear and complete, new terms cannot be added by usage ” 17 C. J. 499, 500, § 63f.
The contract was completed with the purchase order subscribed by the defendant No. 11 in the statement. If the bought and sold notes had agreed with
“As in the case of any other agent, a broker has only such authority as is expressly or impliedly conferred upon him. * * On the other hand, if he exceeds his authority, his employer is not bound, unless the unauthorized acts are ratified; * * .” 4 R. C. L. 256.
Durkee v. Carr, 38 Or. 189, 196, 197 (63 Pac. 117); Larson v. Newman, 19 N. D. 153 (121 N. W. 202, 23 L. R. A. (N. S.) 849, 853).
“A broker is a special agent for a single object, and he cannot bind the principal beyond the limits of his authority. His power is limited by, and ceases with, his instructions, he having only such powers as are actually given; * * . ” 9 C. J. 524, § 24 E.; Henry v. Harker, 61 Or. 276 (118 Pac. 205, 122 Pac. 298).
The entry made in its book by the broker M. R. Jacobs & Bros., Inc., is as follows:
“Lowenstein No. 5162
Noon Bag
1 car load mill (abt. 200M yds.)
SI" 48/48 5.00 Sheetings, Southern make,
Delivery, March, 1921 at 11c ten f. o. b. mill S/Í) later.
“Bynum.”
This entry was not subscribed, either by the principals or the broker, and was not, therefore, suffi
“And it has been held that where the bought and sold notes agree with one another, but differ from the entry in the broker’s book, there ma,y be a contract between the parties according to the terms of the notes founded upon the acceptance of the notes and silent acquiescence.” 4 Am. & Eng. Ency. 753.
There can be no difference of opinion about the bought and sold notes differing from the entry in the broker’s book. The entry evinces an unconditional sale, if it evinces any sale. The bought and sold notes evince a sale conditional on production without naming any particular mill or particular place of production.
“Where he (the broker) is employed to buy and sell goods; it is the custom to give the buyer a note of the sale called a ‘sold note,’ and to the seller a like note, called a ‘bought note’ in his own name, as agent of each, whereby they are respectively bound, if he has not exceeded his authority.” Eau Claire Canning Co. v. Western Brokerage Co., 213 Ill. 561 (73 N. E. 430, 438), quoted in plaintiff’s brief in page 17.
The case of Ankeny v. Young, 52 Wash. 235 (100 Pac. 736), is distinguishable from the instant case in this, that no claim was made that the broker had attempted to execute a contract beyond his authority. The questions in the case of Ankeny v. Young, cited above, were, was a contract made, and if made by the broker without authority, had the conduct of the broker been ratified? The supreme court held that the case should have been submitted to the jury, and
The case of Williams v. Burdick, 63 Or. 41 (125 Pac. 844, 126 Pac. 603), is also distinguishable. The question there involved was whether or not a contract was formed. No additions were made to the unqualified offer of seller responded to by an unqualified acceptance by the buyer. That is not the instant case.
The question of the motives of the defendant, and the intent of the parties as manifested by the correspondence between the parties, as set out in the statement, is one of fact. That question having been decided against the plaintiff is conclusive on this court.
The judgment of the Circuit Court is affirmed.
Affirmed. Rehearing Denied.
