Cothran v. Ellis

• Decision Date: 24 September 1883
• Citation: 107 Ill. 413,1883 WL 10317
• Parties: GEORGE W. COTHRANv.J. ALDER ELLIS et al.
• Court: Illinois Supreme Court

107 Ill. 413

1883 WL 10317 (Ill.)

GEORGE W. COTHRAN

v.J. ALDER ELLIS et al.

Supreme Court of Illinois.

Filed at Ottawa Sept. 24, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Mr. GEORGE W. COTHRAN, pro se, and Mr. JOHN N. JEWETT, for the appellant, after stating and commenting upon the evidence in extenso, made the following among other points of law:

Commission men are the agents of the parties dealing through them. Ewell's Evans on Agency, 3; Story on Agency, sec. 33.

In the absence of express stipulation to the contrary, an agent is bound to obey instructions, or, as between himself and his principal, to bear the consequences of his refusal. Story on Agency, sec. 3; Ewell's Evans on Agency, sec. 1, p. 212.

To bind appellant with any rule or custom of trade, it should appear that the parties dealt with each other upon the basis of the same; or if such custom was waived, then, to hold appellant to the observance of the same, he was entitled to reasonable notice.

The court erred in refusing to allow the several propositions asked, and, aside from their sufficiency, the merits of the case are with the appellant.

Messrs. WASHBURNE & ROBBINS, for the appellees, after stating and commenting upon the facts at some length, made the following among other points:

The duty of agents to obey the instructions of their principals arises only from the express or implied agreement of the parties. Story on Agency, sec. 189. Where an agent has made advances, relying on the goods for indemnity, the law will not compel him to part with them unless repaid his advances. Field v. Farrington, 10 Wall. 141; Pultney v. Keymer, 3 Esp. 182.

A principal is bound, within a reasonable time after being informed of his agent's disobedience to his instructions, to express his disapproval. He is not permitted to remain quiet and observe the subsequent course of the market, and then approve the agent's acts, if they prove advantageous, or disapprove them, should they result in loss. Silence under such circumstances amounts to assent and ratification. Ward v. Warfield, 3 La. Ann. 471.

The first, third and fourth propositions, if otherwise good, do not state properly the measure of damages. If a party willfully or negligently allows the damages to be enhanced, the increased loss justly falls on him. Hamilton v. McPherson, 28 N. Y. 72; Dobbins v. Duquid, 65 Ill. 467; Grindle v. Eastern Express Co. 67 Maine, 325; State v. Powell, 44 Mo. 439; Baker v. Drake, 53 N. Y. 217.

It is well settled in this State, that a person who deals in a particular market must be taken to deal according to the usage or custom of that market, whether he knew of such custom or not. At least he is presumed to know of and deal with reference to the customs of the trade. Bailey v. Bensley, 87 Ill. 559; Lyon v. Culbertson, 83 Id. 36; Corbett v. Underwood, Id. 324.

Mr. JUSTICE DICKEY delivered the opinion of the Court:

This is an action of assumpsit, brought in the Superior Court of the county of Cook, by appellees, against appellant. Issues were formed on the general issue pleaded to the declaration, and replied to a plea of set-off. The cause was tried by the court, a jury being waived. The issues were found for plaintiffs, and judgment rendered against defendant for $2788.63, and costs. This judgment, on appeal by defendant, was affirmed in the Appellate Court, and from that judgment he appeals to this court.

Appellees were commission merchants dealing on the board of trade, and this action is for commissions and money paid by them for appellant on losses incurred in certain speculations conducted by them for appellant, but in their own names. The counter claim of appellant is for money of his in their hands arising from former transactions, and for losses incurred, as he claims, by reason of appellees having, as he insists, wrongfully refused to obey his directions as his agents. The sole controversy in the case arises upon the latter proposition.

It is not our province to pass upon the weight of any evidence given in the case. The sole questions presented for our consideration arise upon the refusal of the trial court to approve, and hold to be the law, certain propositions presented for that purpose by the appellant, at the trial and after the close of the evidence. The bill of exceptions, after stating the close of the evidence, says:

“And thereupon the defendant, by his counsel, then and there asked the court to hold the following propositions of law, to-wit:

1. The court is requested to hold, as matter of law applicable to this case, that agents are bound to obey the orders and instructions of their principals, and that commission men are the agents of the parties dealing through them. The agent can not rightfully charge against his principal losses occasioned by his refusal to execute the reasonable and practicable directions of his principal. And if the court believes, from the evidence in this case, that the plaintiffs, as agents of the said defendant, by his direction, and for his account and risk, in the months of December, 1881, and January, 1882, sold wheat and other merchandise upon the Chicago market for future delivery, and subsequently, for the account and risk of the said defendant, and upon his order, purchased wheat or other merchandise, also for future delivery, then, in the absence of an understanding or agreement to the contrary, said transactions were separate and distinct, and each of them was subject to the control and direction of the defendant, and the plaintiffs had no right, as against the defendant, whilst the said transactions were pending, (the time for delivery not having arrived in either case,) to close out said transactions, or either of them, or to offset the same against each other, upon their books, or otherwise, without, or in violation of, the directions of the defendant. And if the court finds, from the evidence, that the transactions of the defendant through the plaintiffs, as his agents, were as above stated, and further finds, from the evidence, that the plaintiffs neglected and refused to obey the reasonable and practicable directions of the defendant in respect to either or both of said transactions, and losses resulted by reason of such neglect and refusal, then, as between the plaintiffs and the defendant, such losses must be borne by the plaintiffs, and in addition thereto the defendant is entitled to have and recover of the plaintiffs such profits, if any, upon such transactions, or either of them, as the defendant would have made thereon if his directions had been carried out by said plaintiffs.

2. Before any rule or custom of trade relating to the subject of margins between commission men and their principals can be applied to this case, it must be made to appear, by the evidence, that the parties dealt with each other upon the basis of such rule or custom. And if the court believes, from the evidence, that the plaintiffs, in dealing with the defendant, waived the requirements of any rule or custom of trade which they might have reasonably insisted upon, the defendant can not be made liable to the plaintiffs, according to the provisions of such rule or custom, in respect to such dealings, until after reasonable notice that the provisions of such rule or custom would be insisted upon; and what reasonable notice in such case would be, is a question of fact, to be determined by the court under all the evidence in the case.

3. If the court finds, from the evidence, that in the month of January, 1882, the defendant had purchased, through the plaintiffs, as his commission merchants or agents, 5000 bushels of wheat deliverable in February, 1882, and 90,000 bushels of wheat deliverable in March, 1882, and on or about January 25, 1882, ordered the plaintiffs to sell all of said wheat, the 90,000 deliverable in March at $1.36 1/2 per bushel, and the 5000 bushels deliverable in February at the then current price on the market, the plaintiffs were bound to obey such order, if it could have been executed, with reasonable diligence, by actually selling such wheat on the market; and if the court further finds that they refused or neglected to obey such order, and the price of wheat deliverable in February and March declined on the market, and any loss was incurred in consequence of such refusal or neglect to obey such order, such loss must be borne by the plaintiffs, and they have no right to charge it to the defendant, and the...