45 Ga. 501 | Ga. | 1872
This was a suit by the defendant in error to recover the amount of a due bill for $2,000, borrowed by the plaintiffs in error.
A set-off was filed, which originated as follows: On December 20th, 1869, Hewitt employed Warren, Lane & Company, as factors and cotton brokers, to purchase two hundred bales of cotton for him, to be delivered in April following, “at seller’s option.” He placed $2,000 in their hands as a “margin.” The cotton was purchased in Baltimore, through a commercial house of that city, and the “margin” deposited with that house. The purchase was made December 29th. On December 24th, Hewitt loaned Warren, Lane & Company $2,000 more, for which they gave the due bill sued on.
The Judge, in his charge to the jury, and in his judgment refusing a new trial, treats Warren, Lane & Company as a principal party to the transaction, and as selling the cotton to Hewitt. This error is fundamental. The evidence shows that they only acted as his agents in effecting the purchase in Baltimore. The transaction for the purchase of the cotton was clearly such as indicated in section 2596 of the Code, and would not have been enforced, as between Hewitt and the seller, in favor of either party.
1. But where that transaction has been completed, and Warren, Lane & Company seek to recover advances made by them, in good faith, as the agents of Hewitt, which advances were authorized or ratified by him, we think they are entitled to do so. Had a profit been made on the transaction, and had such profit come into the hands of Warren, Lane & Company, as it would have done, the authorities are clear, that Hewitt could have compelled them to pay it over to him: 18 Howard, 510; 2 Wallace, 79; Tenant vs. Elliott, 1 Bos. and Pul., 3; Farmer vs. Russell, Ib., 296; Thomson
It is to be noted that the contract for the purchase of this cotton is not such an one as the Judge, who tried this case, supposes, to-wit: one in which it was at the option of the seller to deliver or not as he pleased. Cotton sold to be delivered in any given month “at seller’s option,” means that the time of delivery, within the month, is at the option of the seller, not that he may deliver or pay the difference between the contract price and the market price at the time of delivery. The witnesses, Russell and Sibley, are explicit on