| Ill. | Sep 15, 1873
delivered the opinion of the Court:
The money sued for in this case was not that of the plaintiffs, but belonged to the National Bank of Commerce, as has been established by legal adjudication, made under such circumstances as to be binding upon the plaintiffs. The only ground of action which can be claimed against the defendants is, for the negligent delivery of the highwines to Ames, without collecting the price. And it is objected, that there can be no recovery for such a cause of action under a declaration in assumpsit containing the common counts only, as in this case, but that there must be a special count thereon. Passing over this objection, we will consider the question as to the liability of the defendants under any form of declaration which might be framed.
The rule in regard to factors and brokers is familiar, that they are only required to act with reasonable diligence and care in their employment. Story on Agency, sec. 186.
The known usages of trade and business, too, enter into the engagement of the agent, and if he conducts his business according to such usages, he will be exonerated from all responsibility. Id. sec. 96.
It seems impossible, on an examination of the evidence in this record, to come to any other just conclusion than that Phillips & Carmichael fully performed the duty arising out of their employment as agents. So far as we can perceive, they used all the diligence and care that a prudent man would have used under like circumstances in the transaction of his own affairs.
In making the delivery to Ames without receiving simultaneous payment, they were justified by the usage of the particular trade or business prevailing in Chicago.
We see no pretext of a ground upon which to charge the appellants rvith a liability in this case, except the one of a violation of orders. There is some evidence in the record tending to show a disobedience of instructions.
Moir testifies that, at the time he was in Chicago, on his way East, about the 10th of July—when he instructed Carmichael how to act in the event of the wines being called for before Moir & Co.’s wines reached market—wines had at that time declined from the time the sale had been made, and he insisted upon an increased margin being put up; that it was the understanding of Moir and Wallace that the margin was to be kept good; that, on application to Ames to increase it, the latter said he distinctly understood that he was to put up but $3 as margin, and declined to increase it; that thereupon Moir walked over to where Carmichael was transacting business, and said : “ Mr. Carmichael, this man is putting a different construction on the contract from what I think he ought to put. Don’t trust a dollar’s worth of our property in his hands without getting your pay for it;” that Carmichael gave assurances to witness he would not. Carmichael positively denies that Moir said anything of the sort.
Phillips swears that, on the same day when Moir was in Chicago, on his way East, he said to Moir, in case it was necessary, to buy in the wines and deliver them, that there was some little risk in delivering wines; that they did not know A.mes at all; never had a transaction with him ; to which Moir replied that we must be as careful as possible; that that was about the sum and substance of the conversation. Moir denies this conversation.
Here is not a preponderance of testimony for the plaintiffs to recover upon. The reason, too, assigned by Moir for giving the direction did not truly exist, for the contract, in plain words, only required a margin of $3 per barrel, which had been put up, and there was no just cause for censure or suspicion of Ames on that ground.
But even if Moir did say to Carmichael what the former testifies, we can not admit that there would be ground for a recovery.
What would have been meant and understood by Moir’s direction not to trust a dollar’s worth of his property in Ames’ hands without getting pay for it? It certainly should not have been taken in its literal meaning, that Moir was to get his pay for each barrel, or each dray-load of highwines, as it was delivered. That would be impossible. Phillips & Carmichael had no right to demand payment until they had delivered the wines, had them inspected on the premises, if required by the purchaser, and furnished the inspection certificate and coupons. The article was bulky, and had to be delivered in successive dray-loads from the distance of a mile. Phillips went twice to Ames’ store during the afternoon while the delivery was going on, in order to protect Moir & Co.’s interest, remaining there the second time until about six o’clock, when the wines were nearly all delivered.
Up to this point it can not be said that Phillips & Carmichael had failed in their duty, or departed from their instructions, if they ever received, any. Not meeting with Ames at that time, what was then the duty of Phillips? It would have been well nigh impossible for him at that time to withdraw the wines from Ames’ store, and place them elsewhere in safety. But, could he have done so, it would have been imprudent to remove the wines, in due regard to Moir & Co.’s interest, so far as Phillips could then judge. Ames, at that time, was in good credit. He might claim the right to insist on the established custom in regard to the sale and delivery of highwines. There was nothing in the contract of sale made by Moir & Co. with Ames to take the sale from the operation of the custom. Phillips could not know but that Ames would require to have the wines inspected on his premises. as he was entitled to have done, by the custom. He was entitled, by the custom, to have the certificate of inspection and the government coupons identifying the wines and showing the payment of the tax, delivered to him with the bill. The custom was, not to deliver these papers, and not to pay for the wines, until the morning after their delivery. If, then, Phillips, on that night of the 18th, had removed the wines, it would have been, as he might reasonably suppose, at the hazard of discharging Ames from his contract, and of Moir & Co. losing the margins of $600 which they had put up, and their 9 cents per gallon, the difference between the price at which they sold and that at which they had purchased.
The only course for Phillips to take, with a view to protect the interests of Moir, would seem to be the one he did take.
He placed the wines in the care of the porter in the store, to be kept until the next morning, and the next morning he was there for the payment. In the meantime the wines had been abstracted.
The loss was not attributable to the pecuniary condition of Ames, but to the fact that he was a dishonest man.
The special instruction claimed as having been given by Moir, as before remarked, could not have been intended to be taken literally. The language of it requires construction, and it must have a reasonable construction.
The usages of a particular trade or business are properly admissible for the purpose of interpreting the powers given to an agent. Story on Agency, sec. 77.
The only reasonable construction to be placed on the language of such instruction, under the circumstances, would seem to be that Phillips & Carmichael were not to give Ames any indulgence, but to insist on prompt payment according to the existing usage and custom; that they were not to trust Anies with the possession of the wines beyond the customary course of delivery, and except to that degree that it was necessary to trust him, in order to make a good delivery, and enable Moir & Co. to collect their purchase money and save the forfeit of the margins which they had put up. To have required anything more, we incline to think the direction should have been more specific, showing an unmistakable intention to depart from the known usage and custom of the particular trade, and the particular wherein the variation should be. The appellants did not trust the wines to Ames without payment, any further than was in strict accordance Avith the knoAvn usage and custom of the business, and than seemed necessary under the circumstances, and under a contract Avhich Avas of the appellee’s own making.
We regard the finding of the court beloAV as unAvarranted by the evidence, and the judgment must be reversed.
Judgment reversed.
I can not concur in the conclusion reached by the majority of the court.