3 Cow. 281 | N.Y. Sup. Ct. | 1824
Curia,
From a review of the tesiimony, it appears, very satisfactorily, that the defendants used reasonable diligence to make sale of the wine to the best advantage. I have not discovered any ground for the
1 incline to think the plaintiffs did not intend, by the instructions, to fix the minimum price at £52. The expressions seem rather to have proceeded from a belief that the excellent quality of the wine would command that sum; and, therefore, instead of’ directing generally, to sell for the best price that could be obtained, they specify the sum confidently expected to be realized, probably to prevent precipitancy in the disposition of the property, and induce greater exertions, if, unfortunately, they had consigned to an unfavourable market. The fact that the instructions are somewhat ambiguous, supports this construction ; for if an express limitation was in view, at the time, it is reasonable to expect it would have been explicitly given. W hat was the state of the market was unknown- If unfavourable, it must have occurred to the plaintiffs, how are the defendants to act ? Such a state of things would seem to call for explicit directions as to the minimum price. The. omission, I ' apprehend, was not accidental ; the plaintiffs intending not to interfere with the sound discretion of their agents-
The answer of the defendants appears to be in accordance with this construction. “ They would close the sales when it could be done without a sacrifice.” Such was, undoubtedly, their intention, as faithful agents, anxious not to disappoint the expectations of their principal. Had they consid- . ered themselves expressly restricted, it is more-probable they would have suggested the improbability of effecting a sale,
The plaintiffs, in their letter of February 3, 1818, to S. Weave,-, drew for the net proceeds of the wine, which had been remitted to London. They express surprize that it brought so small a price, and suspect fraud on the part of the sellers. Violation of orders is not intimated ; when it might be expected, if reliance for redress was placed on this ground. The remedy was, in such case, perfect. It cannot be credited, that if the plaintiffs considered the consignment limited to £52 per pipe, they would have resorted to the question of fraud, instead of pursuing the plain path before them.
On the 2d June, 1818, the plaintiffs write to the defendants, acknowledging the receipt of the net proceeds. There is no complaint or intimation of dissatisfaction, but a proposition for a joint speculation in corn, which the defendants declined. On the 24th November, 18! 8, the plaintiffs wrote to the defendants, expressing, for the first time, dissatisfactio^and claiming to hold the defendants responsible. This notice to the defendants was nearly a year after the plaintiffs had received the net proceeds. If the defendants had disregarded their instructions, the plaintiffs, after advice, ought to have dissented, and given notice in a reasonable time ; otherwise, their assent to their agents’ acts will be presumed. (12 John. 300.) After the letter of the 2d November, 1818, the defendants had reason to conclude that the authority of the plaintiffs to sell was not questioned. I do not, however, place my opinion on the ground of acquiescence, being satisfied, from an attentive examination of the testimony, thafc
Judgment for the defendants.