46 Mich. 5 | Mich. | 1881
This case was sent to a znferee by the circuit oozu’t, and judgznent was given in favor of defendant on the referee’s report. The important facts in the case are the following:
For some tizne prior to June, 1879, and up to August of that year, plaintiff was a dealer in grain at Yerznontvillé in this State, and defendants were comznission brokers and members of the Boai’d of Trade of Detroit. As commission broker’s they had bought and sold for the plaintiff previous to the 30th of June, 1879, and made advances which were all settled on that day. On August 11,1879, plaintiff made a conditional sale of his bzzsiness to his brother Osmyn G-. StebbinsY The conditions were to be performed within a week thereafter’, but they were not performed, and at the end of the week plaintiff resumed his business and took possession of bis property, which in the meantime his brother had had and controlled. A few days before this the defendants had written the plaintiff, sohciting his shipments, and in reply they received the following letter:
“ Orrice or O. G. Stebbins,
Thornapple Yalley Mills,
And dealer in Grain, Feed, Land, Plaster, etc.
Vermontville, Mich., Aug. 11, 1879.
Messes. Walker, Sumner & Co.:
Your letter of the 4th of August was duly received at my stopping place, and by reason of my absence from home and*8 general inattention to business lies unanswered. At tbe opening of the new crop trade .this season I did not think I should engage in active work at all at present; and as I am yet unable to labor, I do not know when I shall take hold again. I am now seriously contemplating a trip to Colorado. My brother is at work in a mild way in the wheat business, but he has so far seen fit to ship to another party, from whom he gets the same rebate as you offer. His initials are the same as my own, so that if you choose to correspond with him, the same direction will reach him as myself.
Thanking you for your efforts in my behalf,
I remain truly yours,
O. Gr. Stebbins.”
This letter was understood by defendants to mean that the plaintiff intended to remain out of business for a time, and that the brother Osmyn was then in the wheat business in Yermontville, and thereupon they addressed a letter to Osmyn, soliciting his business. They also wrote to the plaintiff informing him how they understood his letter, and that they had solicited his brother’s consignments. To this the plaintiff sent no reply, and until November 26th following defendants supposed the dealings with them in the name of O. Gr. Stebbins hereinafter mentioned were on behalf of Osmyn G-. Stebbins, and had no information and no reason to suspect the contrary. These dealings began after September 17th, on which day plaintiff left home for his health and remained absent until October 24th, leaving his brother Osmyn in charge of his business. "While he was gone Osmyn shipped to defendants five car loads of wheat in the name of O. Gr. Stebbins and for the plaintiff, but which defendants received, sold and accounted for, supposing it to be the .wheat of Osmyn himself. On these dealings a balance remained due to the defendants of $74.64. There was also sent to defendants a car load of wheat which was placed in the elevator, but by reason of some mistake, owing to a change of bookkeepers, was not credited to any one. This also belonged to the plaintiff. Early in November defendants also made a purchase of wheat, and also a sale of it which they supposed to be for Osmyn, but which was in
Osmyn G. Stebbins left his brother’s employ November 5, 1879. On November 15th he telegraphed defendants from Jackson in the name of O. G. Stebbins, asking them to send him $700. Nfelying upon his personal credit they sent the money. At the same time he requested them to purchase for O. G. Stebbins 3000 bushels of wheat for January delivery. With this request they also complied.
On November 26th defendant Walker was at Yermontville, when he for the first time learned that plaintiff had resumed business, -and that all the wheat dealings previous to November 15th had been conducted by Osmyn as agent, not as principal. Plaintiff told Walker he had no interest in the purchase of November 15th, but would take it off defendants’ hands. This he could then have done at a profit of $150. Walker declined this offer, but said he would stand upon the purchase until he could realize $700 profit upon it, and then close it out. The wheat was afterwards sold, however, without profit. Afterwards plaintiff had other dealings with defendants which entitled them to claim from him $79.75. The car load which by mistake was not credited to any one, was sold by defendants in January following, and realized $452.79. The defendants claimed they were entitled to apply this and also the $232.86 which was in their hands to the credit of O. G. Stebbins, on November 15, 1879, as part payment of the $700, which Osmyn G. Stebbins obtained from them on that day. Plaintiff resisted this claim, and demanded from defendants the proceeds of all the wheat belonging to him which had been forwarded to and sold by them.
The circuit court gave judgment for the defendants, applying the $232.86 and $452.79 in accordance with their claim, and permitting them to recover the balance of $79.25 on subsequent dealings. This would leave a balance of $14.35 of the $700 still unpaid.
The case in judgment is a plain case of estoppel. There has been negligence from which one of two parties must
It is claimed that defendants waived the hen on the car load of wheat remaining in their hands when they were informed of plaintiff’s interest; but the record shows no express waiver, and no facts from which it must necessarily be implied. • They did indeed express a willingness to hold the January wheat until the rise in value should make good their loss; but there was no agreement to that effect, and if there had been, a desire to protect the plaintiff against loss might sufficiently account for it. They also declined plaintiff’s offer to take the January wheat off their hands, coupled as it evidently was in his mind with leaving them to lose the $700 advance; and for this they cannot be blamed. It was talked over between the parties that defendants should proceed to sell the car load of wheat then on hand; but if plaintiff expected defendants to waive any existing hen, and pay over to him the proceeds, he neither gave any consideration therefor, nor asked or obtained any promise to that effect. The defendants were therefore at liberty to stand upon their rights as they existed at the time they first learned that the business earned on with them by Osmyn in the name of O. G. Stebbins was really the business of the plaintiff.
The judgment must be affirmed, with costs.