Charles Syer & Co v. Lester

• Decision Date: 11 June 1914
• Citation: 82 S.E. 122,116 Va. 541
• Court: Virginia Supreme Court
• Parties: CHARLES SYER & CO. v. LESTER.

82 S.E. 122

(116 Va. 541)

CHARLES SYER & CO.

v.LESTER.

Supreme Court of Appeals of Virginia.

June 11, 1914.

Error to Circuit Court of City of Norfolk.

Action by Frank H. Lester against Charles Syer, trading as Charles Syer & Co. Judgment for plaintiff, and defendant brings error. Affirmed.

Jeffries, Wolcott, Wolcott & Lankford, of Norfolk, for plaintiff in error.

Hugh W. Davis, of Norfolk, for defendant in error.

WHITTLE, J. The Judgment in this case was recovered by the defendant in error, Frank H. Lester (who will hereinafter be referred to as "the plaintiff") against the plaintiff in error, Charles Syer, trading as Charles Syer & Co. (who will be styled "the defendant").

The plaintiff, who was a wholesale commission merchant in New York City dealing in foreign fruits, primarily at least, engaged the defendant (a merchandise broker in the city of Norfolk, Va.) to represent him in that city on a brokerage commission of 10 cents per box on all accepted orders for the purchase of lemons from responsible wholesale dealers. The defendant's theory of the case is that the original relation of principal and broker between the plaintiff and himself continued throughout the transaction which is now the subject of investigation, and must control the rights and liabilities of the parties with respect to the 125 boxes of lemons in controversy. The plaintiff, on the other hand, maintains that the defendant's order and his acceptance established the relation of buyer and seller between them with regard to that part of the shipment

The order is as follows:

"Norfolk, Va., July 10, 1911.

"Frank H. Lester, New York City.

"Dear Sir: We wired you to-day as follows:

" 'Have sold one hundred fifty boxes three sixty lemons. Your price eighth. Sending orders tonights mail'—which we herewith beg to confirm.

"We are inclosing herewith orders as follows: "Grandy Jobbing Co., Norfolk, Va., ten boxes. Kelly & Borum, Norfolk, Va. five boxes. Porter & Stephenson Co. Norfolk, Va. ten boxes. To ourselves one hundred and twenty-five boxes.

"We want to ask that you keep us carefully posted as to market conditions as it is our desire to handle lemons in car lots, as soon as we can get started. For your information thisis somewhat a new line with us, having just been taken on.

"Trusting to have your hearty co-operation, we beg to remain,

"Very truly yours, Chas. Syer & Co.

"HFW/W H. F. White."

The brokerage contract required the defendant in his orders to give the names of the responsible wholesale dealers to whom sales had been made, and to whom, when approved by the plaintiff, the goods were to be consigned; and in compliance with that stipulation the foregoing letter named the defendant as the purchaser to whom 125 boxes of the order for 150 boxes of lemons were to be shipped also naming the purchasers of the remaining 25 boxes. No other consignee was known to the plaintiff, and he complied strictly with the written instructions of the defendant in shipping the 125 boxes to him.

On July 18, 1911, complaint was made by the defendant to the plaintiff, both by wire and letter, that the lemons were short in count and inferior in quality, and had not given satisfaction to customers. To these communications the plaintiff replied by wire the day following, July 19th:

"Cant understand why you should complain about lemons they are full count and were sound when shipped would sooner allow you 40c per box than have any controversy."

The defendant settled the dispute between third parties and the plaintiff on the 40 cents basis; and on July 19th wired him:

"Have sold thirty-three boxes forty cents allowance cant handle balance any price best can do is to turn over commission house for your account wire at once."

To that telegram plaintiff replied on the

same day:

"Inasmuch as you have sold part of the shipment lemons we insist that you accept all."

There was other correspondence between the parties which does not call for special notice.

The trial court correctly ruled that the relation of the parties with respect to the 125 boxes of lemons was to be determined by all the facts and circumstances bearing on the transaction, and not solely by the terms of the letter of July 10, 1911. Accordingly, at the request of the plaintiff, the jury were instructed as follows:

"The court instructs you that the telegram under date of July 19, 1911, addressed by Frank H. Lester to Charles Syer & Co., constitutes an offer of compromise, and that if you believe from the evidence...