Woods, Slayback & Co. v. Rocchi

32 La. Ann. 210 | La. | 1880

The opinion of the court was delivered by

Manning, C. J.

This suit is for $2,479 80 and interest, balance of account for one thousand tierces of lard at thirteen and three quarters cents per pound. The answer is a general denial.

The dispute as to liability is primarily due to the bad practice and tortuous conduct of the broker who made the purchase. It is certain, that the plaintiffs sold at the price above mentioned, and it is equally certain that Bocchi supposed he was buying at thirteen cents. Schex-nailder was the broker. Early in January 1875 he proposed to Bocchi to buy this large quantity of lard at thirteen cents. Bocchi called to Hamburg for instructions, and received them Jan. 6th, and accepted the .broker’s offer. The negotiation was closed, and the following note of purchase received by the plaintiffs ; — •

“ New Orleans January 22, 1875.

“Messes. Woods, Slaybaoe & Co., 71 Poydras St.

“ Gentlemen — I have this day closed to John Bocchi Esq. of this city for your account one thousand tierces prime steam lard to be immediately shipped from St. Louis at thirteen and three quarters cents per lb. delivered here.

“Mr. John Bocchi binds himself to pay cash upon delivery of said lard.

“ Bespectfully yours,

“E. SGHEXNAXLDEB,

“ per Thiedden.”

No copy of this or duplicate was sent to Bocchi, nor did the plaintiffs know who was the purchaser until the 22d.

The lard commenced arriving February 8th, when over 500 tierces were delivered. The bill for it, charged at 13f cents, was delivered to the broker January 30th, but it does not appear to have been handed by him to Bocchi until February 14th. The delivery of the rest of the lard was made on the 20th, and before that day Bocchi had made payments amounting to $39,900 00. He then paid $3,106 14 which would be the balance due if the price of the lard was thirteen cents.

The testimony leaves no doubt on our minds of the good faith of' both plaintiffs and defendant in the beginning of the transaction, but Bocchi had received the plaintiffs’ bill, in which the price charged was 13| cents, as early as February 14th, and on Woods applying to him for a payment on the 16th, he turned to his desk and took out the bill, saying he observed that 13| cents was charged for the lard, and that he had bought at 13. Woods replied it was rather late to make such a claim. More than four hundred tierces of the lard were yet to be delivered, and Bocchi should then have declined to take them at the price charged if he did not intend to pay it. The plaintiffs never abated their price. Whatever might have been Bocchi’s contract with the broker, he had then the evidence that the broker had deceived him, and that the plaintiffs demanded the price at which they had sold, and held him bound for it. Lard had advanced. Woods says he could have sold the undelivered lard at a higher rate. If Rocchi had then and there refused to take the residue of -the lard, or declared distinctly that he claimed it all at the price stipulated between him and the broker, he might be possibly in a different attitude. From the conversation of the 10th, as detailed by both parties, Woods had the right to believe that Rocchi accepted the bill then in his hands as a correct account of the purchase. The witnesses say, Schexnailder was a purchasing broker. He acted for Rocchi, who calls him on the stand his broker. He certainly was not employed by the plaintiffs. A broker is primarily the agent of him who employs him originally, and he becomes the agent of the other party only when the bargain is definitively settled as to its terms between the principals. Story’s Agency 431. The contract, as actually made by the broker on behalf of Rocchi, was brought to his knowledge in ample time for him to have prevented the delivery of nearly half .the goods bought. He did not repudiate the contract made for him by his agent or his pretended agent, and in law he is presumed to have ratified it. Potts v. Shubert, 11 La. 286. Bonneau v. Poydras, 2 Rob. 1. Guim-billot v.'Abat, 6 Rob. 284.

The defendant’s counsel insists that the plaintiffs’ negligence has caused the difficulty. They should have required a “ bought and sold note,” but instead, contented themselves with a simple memorandum. The so-called memorandum was a formal notification of the sale, the price, and the purchaser. It has already been copied in. this Opinion. The usage here is shown not to be uniform in this respect. A produce broker testifies that this is one of the forms used here. Conceding that the plaintiffs should have required a bought note at the outset, it was equally the duty of the defendant to have required a. sold note, and as he was equally negligent with the others, he can take nothing on that score.

The counsel also insists that the seller is bound to explain himself clearly respecting the extent of his obligations, and any obscure or ambiguous clause is construed against him. Yery true, and how could the plaintiffs have explained themselves more unambiguously than they did when they rendered a bill, before any portion of the goods were delivered, in which was set forth clearly the price charged. If the broker did not deliver that bill at once, it was not the fault of the plaintiffs, but it was delivered as we have seen, and the reticence of the defendant, and his failure at the subsequent conversation to repudiate the contract or claim its performance at his price, is construed against him.

We said at the outset that both parties were in good faith in their several negotiations with the broker. Concede that this good faith eon-tinued, and the broker was alone to blame. Rocchi received a large part oi the goods alter he knew there was a mistake, and sent them abroad so they cannot be reclaimed, and have been consumed by use. If he should not pay the price stipulated by the broker, he should at least pay a fair price — a price equal to the value of the goods. The prbof is abundant that when both lots of lard were delivered, the article had advanced and the market'value of this quality was higher than the price claimed by the plaintiffs. Both law and equity are against the defendant. Therefore

It is ordered and decreed that the judgment of the lower court is avoided and reversed, and it is now decreed that the plaintiffs have and recover of the defendant John Rocchi the sum of two thousand four hundred and seventy-nine dollars and eighty cents. with five per cent, per annum interest thereon from February 20,1875 and costs of both ■courts.

Rehearing refused.