Shoninger v. Peabody

Decision Date04 January 1889
Citation57 Conn. 42,17 A. 278
CourtConnecticut Supreme Court
PartiesSHONINGER et al. v. PEABODY.

Appeal from district court of Waterbury; BRADSTREET, Judge.

Assumpsit by Simeon B. Shoninger and an other against Frederick O. Peabody for the price of a piano. Judgment for plaintiffs, and defendants appeal.

J. O'Neill and C. A. Colley, for appellants. S. W. Kelloyg and J. P. Kellogg, for appellees.

LOOMIS, J. The plaintiffs have been for many years dealers in musical instruments at New Haven, with a branch store at Waterbury, which from 1880 to October, 1886, was under the sole charge and management of one Henry R. Day, the general agent of the plaintiffs. Day was paid a regular salary, and received in addition a commission on all sales made by him for the plaintiffs. While acting as such agent he sold from the store in Waterbury one of the plaintiffs' pianos to the defendant for the agreed price of $300, which was agreed to be paid for wholly by certain commissions that might become due from Day to the defendant on future stock transactions between the defendant and Day on his private account. The defendant had been for a considerable time engaged in the business of a stock-broker, and as such had had previous dealings with Day. The plaintiff had no actual knowledge of the sale of the piano until after Day had left their employment. He had reported to them that the piano was rented to the defendant. But the finding is explicit that the plaintiffs were informed of the terms of the sale after Day left their employ, and before the bringing of this suit. The defendant earned commissions in his stock transactions on Day's account to the amount of $185, which were credited by Day on the piano account, but not paid over to the plaintiffs. In the year 1886 the defendant paid the plaintiffs several sums, aggregating $75, which is all the plaintiffs ever received towards the price of the piano. Day was a defaulter in his dealings with the plaintiffs to an amount exceeding $5,000.

The manifest wrong and injustice perpetrated upon the plaintiffs by the defendant and Day make us regret that the principles of law applicable to the remedy chosen by the plaintiffs are not flexible enough to afford relief. But the greatest good to the greatest number requires adherence to sound general principles, even though in a given case a party may fail in obtaining redress. The whole trouble in this case arises from a mistake as to the plaintiffs' remedy. When the plaintiffs were informed of the terms of the contract made by their agent for the sale of the piano to the defendant, they had an election to repudiate the arrangement, and, by tendering back what they had received in ignorance of the terms of the sale, and demanding the piano, they could have recovered it by an action of replevin, or obtained its value in trover. But, knowing the terms of the sale, they elected to sue in assumpsit on the contract for the agreed price, and thereby they affirmed the contract, and ratified the act of the agent, precisely as if it had been expressly approved upon being reported to them by the agent or the defendant; and in contemplation of law a subsequent ratification and adoption of an act has relation back to the time of the act, and is tantamount to a prior command. 1 Amer. Lead. Cas. (4th Ed.) 502. The argument for the plaintiff's (though it is not so stated) seems really to involve the fallacious assumption that the plaintiffs could affirm the contract in part and repudiate it in part; that is, that the contract is to be treated as good for the agreed price, but bad as to the agreed mode of payment. But the law requires a contract to be affirmed or repudiated in its entirety. Shepard v. Palmer, 6 Conn. 100; Newell v. Hurlburt, 2 Vt. 351. See, also, the cases hereinafter cited. There was no contract at all relative to the piano except the one made by Day as their agent; and when the plaintiffs, knowing the facts, sued on that contract, they affirmed it in every essential particular, both as to price and as to the terms of paying the price. The leading case on this subject is Smith v. Hodson, 4 Term R. 211, where it was held that if a bankrupt, on the eve of his bankruptcy, fraudulently deliver goods to one of his creditors, the assignees may disaffirm the contract, and recover the value of the goods in trover; but if they bring assumpsit they affirm the contract with all its incidents, so that the creditor may even set off his debt; and the principle established in that case has ever since been considered to rest upon an impregnable foundation, that the existence of the contract could not be affirmed to promote the purpose of a recovery, and at the same time be treated as a nullity in order to shut out the opposite party from a defense otherwise open to him. In Rutter v. Gable, 1 Watts & S. 108, the trustees in a domestic attachment, which is a proceeding in the nature of a commission of bankruptcy, sued the defendant in assumpsit for the amount of a check which had been transferred to him by the party against whom the attachment issued, subsequently to its date, and relied on the invalidity of the transfer as ground of recovery. But it was held by the court that, whatever the result might have been had the action been laid in tort, the necessary result of laying it in contract was to affirm the transaction on which it was founded, and entitle the defendant to show that he had received the check in payment of a debt. For the same reason it has long been held that a principal who seeks to enforce a sale made by hi3 agent cannot ordinarily allege that the agent exceeded his instructions in warranting the goods, because he must accept the contract as a whole, if he means to rely on any portion.

The general consensus of judicial opinion in the United States is in perfect accord with the authorities cited from the English courts. We will select a few only of the numerous cases affirming the principles upon which we base our opinion. One of the most recent cases is that of Billings v. Mason, decided in August, 1888, by the supreme court of Maine, reported in 15 Atl. Rep. 59. The case is stated by DANFORTH, J., in giving the opinion of the court, as follows: "The action is assumpsit upon an account annexed. The defendant admits that he received from the...

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