155 Ky. 465 | Ky. Ct. App. | 1913
Opinion of the Court by
Affirming.
Plaintiff, E. S. Sutton and W. J. Cummins, partners •doing business under the firm name of Sutton & Cummins, brought this action against defendant, Kiel Chesse & Butter Company, for violation of an alleged contract made with the defendant, by which it agreed to deliver to plaintiffs free on board cars at Keil, Wisconsin, during the month of October, 1907, 2,000 boxes of cheese of the brand known as “Daisies” at the price of 141-2 •cents a pound. Defendant answered and denied that it entered into the contract sued on, and in its second paragraph pleaded a set-off and counterclaim of $3,630. The jury returned a verdict finding that neither plaintiffs nor defendant were entitled to any damages whatever, whereupon judgment was entered dismissing plaintiffs’ petition and defendant’s set-off and counterclaim. Prom that part of the judgment dismissing plaintiffs’ petition, plaintiffs appeal.
At the time of the transactions complained of plaintiffs were merchandise brokers in Memphis, Tennessee. Defendant was engaged in the manufacture of cheese at Kiel, Wisconsin.
“Canale and Company offer twelve three-quarters for two fifty daisies, answer. ’ ’
On October 15th defendant wrote plaintiffs in answer to their letter of the 13th, stating that they were shipping 50 boxes of Daisies, which they invoiced at 13 3-4c, f. o. .b., Kiel. On October 18, 1906, plaintiff sent the following telegram to defendant: “Please ship us 50 boxes Daisies, full cream, 13 l-4c, f. o. b., Kiel, Wis.” On October 20, 1906, plaintiffs sent defendant a cheek for $143.82 in payment of invoice of October 10th. On October 22nd defendant acknowledged receipt of the remittance. On October 25, 1906, plaintiffs sent defendant a check for $144.57, covering invoice of October 15th. On October 30th plaintiffs wrote defendant that the 50 boxes-
The foregoing telegrams and correspondence were all preliminary to the making of the alleged contract on which this suit is predicated. That contract grows out of the following correspondence:
On September 27, 1907, plaintiffs telegraphed defendant as follows: “Wire your lowest future price on Daisies. ’ ’ In reply they received the following telegram, dated September 28th: “Daisies fourteen half September shipment, quarter advance monthly, telegraphic acceptance, market advancing, this price low.” On the same day defendant wrote plaintiffs a letter setting forth the exchange of wires, and stating that the price of 14 1-2 cents on Daisies was very low, and should bring the business. On October 1, 1907, plaintiffs sent the following wire to defendant: “Telegram received, proposition accepted, two thousand boxes. ’ ’
On the same day defendant wrote plaintiffs a letter confirming the exchange of wires and further stating that the price was the best it could do, and it advised plaintiffs’ friends to buy, as the price was very low. On the same day plaintiffs wrote defendant, confirming the exchange of wires, and accepting their proposition. On October 2nd, defendant wrote plaintiffs acknowledging receipt of telegram of October 1st, ordering the two thousand boxes, and asked for mail advices as to who the purchaser was. On October 3, 1907, it again wrote plaintiffs, asking the name of the purchaser. On October 5th, plaintiffs wrote defendant saying that they themselves were the purchasers. On October 7th, defendant wrote plaintiffs saying that they were surprised to learn that plaintiffs were the purchasers. The letter also contained the following statement:
‘ ‘-We considered you as our brokers and are not making other prices to you and not in a position to close the contract under these circumstances.
“Our correspondence with you has been as brokers, as your letter-head signified, and not as dealers.”
On October 9, 1907, plaintiffs acknowledged receipt of defendant’s letter declining to accept contract if
“Your letter-head distinctly states that you are merchandise brokers and we have always considered you as such and always presumed, when we made you prices, that they were for your jobbers or wholesale dealers and never considered that we were quoting cheese to you. We will be pleased at any time to accept contract from your jobbers at current prices, but certainly could not, injustice to ourselves, turn this contract over to anyone.”
On October 14, 1907, plaintiffs wrote defendant as follows:
“We have your favor and note contents, and are sincerely sorry that you have taken the stand you have. We presume that you are in your rights.”
They then asked the price of 500 boxes for the Day & Bailey Grocery Company for future shipment. Up to that time plaintiffs had made certain orders in the name of Day & Bailey and Ely Lesser.
It is the contention of plaintiffs that their telegram of September 27, 1907, saying “Wire your lowest future price on Daisies, ’ ’ together with the telegram of defendant of September 28th “Daisies fourteen half September shipment, quarter advance monthly, telegraphic acceptance, market advancing, this price low,” together with their telegraphic acceptance of October 1, 1907, as follows: “Telegram received, proposition accepted, two thousand boxes,” and the various letters confirming the exchange of wires, constitutes a binding and enforceable contract in their favor against the defendant, and that the trial court should have so decided and directed a verdict in favor of plaintiffs for the amount of the claim sued on. Even if this be conceded, there is another element in this case which prevents a recovery by the plaintiffs and that is the relation of the parties. The difference between a broker and a factor is that a broker is a mere negotiator between other parties, and does not ordinarily act in his own name, but in that of his employer. He is not entrusted with the custody of goods «which he may be employed to buy or sell, and is not authorized to buy or sell them in his own name. On the other hand, the
Judgment affirmed.