2 Hilt. 184 | New York Court of Common Pleas | 1858
It is very clear, in this case, that the referee erred. It appeared, by the testimony of Sturges, that the defendant spolce to him about buying the hemp for Mm. Sturges accordingly opened a negotiation with the plaintiff and the plaintiff’s clerk Hanford, the plaintiff agreeing that Sturges might sell the hemp to the defendant, to be paid for as it was taken away. Sturges agreed to the terms of the sale as stated in the memorandum or sale note, which expressed every thing except the number of bales and the weight, which were to be ascertained afterwards. The names of the buyer and seller were specified, the price per ton, the time within which the hemp sold was to be paid for; that it was to remain in the plaintiff’s store at the expense and risk of the seller for one month, and thereafter at the expense and risk of the purchaser,—the defendant to pay for the hemp as he might want to take it away, at the rate of 8 per cent, per annum. This note or memorandum in writing was subscribed by Sturges in his own name, and given by him to the plaintiff The defendant,-in about a week after the making of the note, sent for eight bales, which were deliver-' ed to him ; and, in the course of a year and a half, he sent for the greater part of the hemp, by orders from time to time, which was delivered upon his orders, and for which he paid at the rate agreed upon.
From this state of facts it appears that Sturges, who was a clerk of John E. Forbes & Bros., brokers, had authority from both parties to effect the sale. His authority, as respects the defendant, having been confirmed by the defendant’s sending for the hemp from time to time and paying for what he received, as
Conceding that this was not a note or memorandum under the statute, the evidence in the case fully established an agreement for the sale of 356 bales of jute hemp, upon the terms and conditions stated in the writing, which was afterwards consummated and became a valid contract under the statute, by the delivery and acceptance, by the defendant, of the greater part of the hemp. The evidence establishing such an agreement and partial delivery is, in my judgment, very clear.
Forbes, a broker, whose clerk, Sturges, effected the sale, testified that the defendant told him, about the time of the sale, that he wanted to buy all the jute hemp that was then in New York. Sturges swore that the defendant spoke to him about buying the hemp; that the negotiation was conducted by him; that he made the purchase in two hours; that he saw the hemp in a store in Water-street, before it was sold; that he knew it to be the plaintiff’s hemp; that the hemp he sold to the defendant was the lot he saw; that he told the defendant that the plaintiff had such a lot of hemp, and where it was, referring to it as hemp of such a mark and quality in the cellar in Water street; and that the result was, that he bought the lot for him; that the sale note expressed everything except the number of bales and their weight; that they did not put the number in the sale note, because they did not know whether it was 340 or 360 bales; that that was all that was to be ascertained, and the quantity was left to be filled up. He further testified that he saw some of the hemp afterwards in another street, which was said to belong to the Water-street lot; and the defendant’s clerk testified that part
The referee, by his report, finds, among other conclusions of fact, that although the number of bales ivas not mentioned in the sale note, that the number sold 'was 356, and that the greater part of it was delivered to the defendant in such parcels as he required, either for his own use or upon orders given by him on the plaintiff, in favor of purchasers to whom the defendant had sold, between the 23d of August, 1850, and the 27th of January, 1852,. and that such parcels were paid for as they were taken away.
Having thus found the facts, he finds, as one of'his conclusions of law, that there was not such an acceptance and receipt of part oí the hemp contracted to be sold as is required by the statute, in order to charge the defendant in this action as the purchaser of the whole; his other conclusion of law being, that there was no note or memorandum within the meaning of the statute.
I confess myself at a loss to understand upon what ground the referee came to the conclusion that there was not such an acceptance and receipt of part of the hemp contracted to be sold as is required by the statute, unless it was upon the authority of a case to which we are referred in the respondent’s points, (-Sey
The referee found that it was not proved that the defendant had given the plaintiff any special authority to sell the damaged bales on his account, and that there was no evidence that he, the plaintiff, had given the defendant notice of his intention to sell them. The evidence reported by him, shows that the testimony in respect to a general authority to sell was explicit and uncontradicted. The plaintiff’s clerk, Hanfield, testified that the defendant “ ordered us to sell the jute for him as much as we could, and I did soand, again, “ I am perfectly certain that we were authorized by Mr. Darragh to sell the hemp for him; he wished me over and over again to sell it for him, and would ask me if I had done sO’j my impression is that I reported to him the sales we made, but cannot say. I saw Darragh long before the sale of the damaged bales; had conversations with him about the damage near that time. * * I don’t know that he ever gave me any directions with regard to that particular parcel. After the hemp was all sold, I gave Darragh. an account of the transaction. * * I recollect that he objected to the damage.” It is very clear, from this testimony, that a general authority was given by the defendant to the plaintiff’s clerk to sell as much of the hemp as he could, without any reservation as to the bales that were damaged, which were thirty-three in number. The damage to these bales was not shown to have occurred through any negligence on the part of the plaintiff. It was damaged by dry rot, supposed to have been occasioned by the absorption of moisture from the floor of the place where it was stored, though it was on high ground, and the floor was dry when the hemp was placed on it.
The extent of the defendant’s liability was not gone into by the referee; for, having arrived at the conclusion that there was no contract for the sale of the 356 bales, all other questions in the case became immaterial. As the report must be set aside, it would be better, perhaps, that we should not express any opinion
Judgment reversed, and new trial ordered.