White v. Chouteau

10 Barb. 202 | N.Y. Sup. Ct. | 1850

By the Court, Edwards, J.

The facts, about which there is no dispute in this case, are, that at the time of the sale in question, the plaintiffs were merchandise brokers in the city of Baltimore ; and that Tully, of Philadelphia, had a quantity of indigo in the possession of Wirgman, a commission merchant in Baltimore, for sale; and that the same was sold by the plaintiffs.

The first ground taken by the plaintiffs is, that if they were, at the time of the sale, nothing more than ordinary brokers, they would be entitled to recover in this suit; and they refer to the rule laid down by Chitty, in support of this position. (1 Chit. Pl. 7.) A reference to the authorities which are cited by the author, will show that they do not sustain the rule, to the unqualified extent to which he lays it down. The cases referred to, w^re those of persons selling under a del credere commission, or of brokers, or factors, who had made advances upon the goods sold by them, or auctioneers, or persons having some spe^ cial property or interest in the subject matter of the agreement. But in none of the cases, has the right to sue in his own name, been extended to a mere ordinary broker. (See Buckbee v. Brown, 21 Wend. 110.)

The next ground taken by the plaintiffs is, that the purchase was made from them in their individual capacity ; and that they were the sole parties to the contract. We think that the testimony does not warrant such a conclusion. The first offer for the purchase of the indigo, must have been made to the plaintiffs as brokers; for they did not pretend to have any right to accept it, but referred to Tully, the owner, for an answer ; and it appears that he refused to sell at the price offered. The testimony also shows, that when the second offer was" made, 'the plaintiffs did not accept it, and did not profess to have any authority to do so ; and in the letter which they sent to the defendants, accepting the offer, they said that the owner had authorized them to accept it.

The next question to be considered is, whether there was sufficient evidence to go to the jury upon the question of the guaranty of the sale by the plaintiffs; for if there was such guaranty, the plaintiffs would be entitled to sue in their own names. (Grove v. Dubois, 1 T. R. 112. Atkins v. Amber, 2 Esp. 493.) The only evidence, bearing directly upon this point, consists of the admissions of Tully, the owner of the indigo. It appears from the testimony of Wirgman, the commission merchant who had possession of the indigo, that on the same day that the defendant Chouteau examined it, Tully went into the plaintiffs -counting room, and then came back, and said that he had made a sale, and got the money upon the plaintiffs’ guaranty. He further says that when Tully came back, he told the witness that he had accepted the offer of the defendants, on the plaintiffs guaranteeing the sale, and he ordered the witness to deliver the goods to the plaintiffs. The same witness gives further evidence of a similar character, bearing upon the same point.

The first question to be considered upon this testimony is as to how far the admissions of Tully are evidence against the defendants ; it having been satisfactorily proved that he was dead at the time of the trial of this cause.

The exception to the general rule of evidence as to hearsay testimony is, that where the declarant is deceased, and where it appears that he possessed competent knowledge of the facts, and that his declarations were at variance with his interest, they are admissible in a suit between third persons, and such declarations need not be in writing. (Ivat v. Finch, 1 Taunt. 141. Peacock v. Watson, 4 Id. 16. 1 Greenl. Ev. §147.) The declaration of Tully that he had received the plaintiffs’ guaranty would not be at variance with his interest; but his declaration that he had made a sale, and received the money upon the plaintiffs’ guaranty, was clearly against his interest; for it was an admission that his debt had been satisfied by the plaintiffs. (Higham v. Ridgway, 10 East, 109. Middleton v. Melton, 10 B. & Cr. 317.) It would seem then that as far as the admission of the receipt of money was concerned, the declaration was competent evidence against the defendants, and connected with the other circumstances of the case, we think that there was sufficient to authorize the plaintiffs to go to the jury upon the question whether the money "was advanced upon the goods by the plaintiffs, as an inducement to the owner to accept the offer made by the defendants; and whether there was not a guaranty, which was executed and performed at the time of the sale, and as a condition of the sale. The circumstances of the case are certainly consistent with, and as we think tend to sustain such an inference; for Tully had at first refused the offer of the defendants, and it is reasonable to suppose that there was some new and additional inducement held out to him to accept it. It also appears, in further confirmation of this view of the case, that the plaintiffs, on announcing the sale to the defendants, assumed a new character; for the invoice was made out in their own names.

We think that upon this last point the judge should have submitted the case to the jury, and that he erred in not doing so.

The judgment must be reversed, and a new trial had in the court below.