Parkhill v. Imlay, 15 Wend. 431

Parkhill v. Imlay

15 Wend. 431 | N.Y. Sup. Ct. | 1836

By the Court,

Nelson, J.

After a careful consideration of the facts in this case, I am unable to concur with the disposition made of it by the superior court. I have not seen the reasons for their judgment, but will briefly examine the points now relied upon to sustain it by the counsel for the defendant in error.

It is said that the authority to purchase the wheat was upon the condition that a vessel should be found at Richmond bound to Hartford, which would take the wheat at a specified freight, and also that the purchase of the wheat should be made at Richmond. The answer to all this is, that the vessel chartered was at the place about the time the defendant’s letter reached there, which must have been, in the course of the mail, on the 14th or 15th of the month. The Molly was chartered on the 22d, and one of the witnesses stated that she had been there several days previous to the engagement; and as to the purchase of the wheat at Richmond, there is nothing in the terms of the order, nor in the nature of the transaction-or the course of trade, requiring such an execution of it. The plaintiffs were requested, if there was a vessel at Richmond that would take *434a cargo of wheat to Hartford at 10 cents per bushel, to send one if they could procure it of good quality. Now it does not seem to me a harsh and unreasonably severe construction to sa7> that the purchase of the cargo some 80 miles nearer the place of its destination, where i't is proved a better quality of the. article can usually be procured, even if there had been a supply at Richmond, which there was not, was a departure from the authority conferred by its terms or spirit. Perhaps it may be implied, that the defendant contemplated a purchase at Richmond, presuming that it could be found in the market; but if he had intended to make this an imperative condition upon the plaintiffs, it would have been easy and natural for him to have so said. They very honestly assuming that he meant substantially yrhat he did say, viz. that he wanted a cargo of wheat of a good quality, with all reasonable dispatch, procured it; and now, when casualties over which the plaintiffs had no control, and for which they are not to be held re-’ sponsible, delayed the arrival of it at its place of destination, it should not be permitted to him to set up that it was purchased at a different place from that designated, by a very strained inference from the order, and therefore without authority. But it is said that the execution of the order down the river occasioned delay, which the defendant intended to avoid at that season of the year. Whether it occasioned a delay beyond that which unavoidably arose from a faithful execution of the order, under all the facts and circumstances of the case, so as to constitute a departure from the authority given, was certainly not exclusively a question of daw.' As I understand the facts, the delay arose solely from the inclemency of the weather ; and for aught that appears in the case, the execution of the order at Richmond would not necessarily or certainly have avoided this consequence. Even if the Molly could have sailed a few days sooner, she must still have encountered the storm on her voyage. But I deny that the plaintiffs are to be charged with the delay occasioned by the weather. If they executed the order with reasonable dispatch, and according to the course of that particular trade which the defendant is presumed to know, they have done their duty. That they did thus execute it, appears to be fully proved ; and at all *435•events, if doubted, the point should have been submitted to the jury.

It is also urged that the plaintiffs were bound to have given immediate notice of their purpose to execute the commission, •and that they omitted to do so from the 15th to the 25th November. It appears the plaintiffs, with customary diligence, set about executing the order on the receipt of it, and soon, if not immediately after it was accomplished, duly advised the defendant of the fact. They went down the river 80 miles in search of the wheat, purchased it, and gave directions for the delivery, returned, chartered a vessel, and wrote advising the defendant of all that was done, in the course of some 9 or 10 days. Advice in due time of the execution of an order, I apprehend, is all that can be reasonably required. Under the circumstances, the plaintiffs were not bound to return an immediate answer that they would execute it if possible. Being able in so short a time to determine definitively the point, they were not bound to communicate with the defendant till they had made the effort. The defendant had a right to presume, and should have acted upon the presumption, that the order would be executed if practicable. From his letter of the 30th November it appears that he acted upon the opposite inference. Not immediately hearing from the plaintiffs, he assumed they were neglecting his order, and he accordingly procured a supply of wheat elsewhere. This was doing injustice to the fidelity of his correspondents. It seems to me he should have presumed they were engaged in filling his order, and that if they had determined otherwise, he would have been duly advised. He had no right to assume they were neglecting his business, till he had given them a reasonable time to accomplish it. The answer of the defendant to the letter of advice of the purchase of the wheat, giving his reasons for not receiving the cargo, is not very satisfactory. He affects to' believe that the order required the plaintiffs expressly to ship the wheat by Capt. Waterman, who could bring about 2000 bushels; and as he perceived from the papers that the captain had sailed before his order could have reached the plaintiffs, supposed that to be the reason why he had not heard from them. This is obviously an unfair interpretation of his own *436letter of the 8th November. He had no right to presume or believe his correspondents were thus instructed; and to insist and act upon that view of the case, was calculated to entrap them. They could draw no such inference from the terms „ .. . oi the order.

Upon the whole I am unable to say, as matter of law, that the plaintiffs were bound to forward an immediate answer to the order of the 8th November; but am of opinion the conduct of the plaintiffs in this respect turns upon a question of diligence, proper undoubtedly to be considered by the jury, when from all the facts and circumstances of the case, course of trade, &c., they are called upon to decide whether the plaintiffs have used reasonable dispatch in the execution of the order. This embraces not only the filling of it, but due advice of the fact. The point, I think, belongs to the jury.

Judgment reversed, venire de novo, costs to abide the event.