Fagin v. Connoly

• Decision Date: 31 March 1857
• Parties: FAGIN, Respondent, v. CONNOLY, Appellant.
• Court: Missouri Supreme Court

25 Mo. 94

FAGIN, Respondent,

v.CONNOLY, Appellant.

Supreme Court of Missouri.

March Term, 1857.

1. Although, as a general rule, the interpretation of written instruments belongs to the court and not to the jury, the construction and true interpretation of commercial correspondence may, under proper circumstances, be properly left to the consideration of the jury.

Appeal from St. Louis Circuit Court.

Knox & Kellogg, for appellant.

Hitchcock, for respondent.

RYLAND, Judge, delivered the opinion of the court.

Fagin, a miller in the city of St. Louis, shipped to Connoly & Co., who were his factors at the time in New Orleans, during the fall of the year 1853, quantities of flour for sale. Among the lot of flour thus sent were 1149 barrels of superfine. The flour was to be sold by defendants for the plaintiff, Fagin, and under his directions. These 1149 barrels were in the possession of the defendants as factors and commission merchants of the plaintiff before the 5th of December, 1853, and so remained in their possession until the latter part of January, 1854, when the same were sold by the defendants for seven dollars per barrel, the then market price.

From the evidence presented by the bill of exceptions, it appears that Fagin by a dispatch by telegraph, dated 5th December, 1853, instructed the defendants to hold his flour, at seven dollars for superfine, and extra flour in proportion; that after receipt of this dispatch the defendants wrote to Fagin at different dates advising the plaintiff to leave them to sell his flour without any limit as to price, trusting to their discretion. On the 13th of December, 1853, the plaintiff wrote to defendants and removed all limits as to his flour, hoping that they would do ample justice to him in closing sales, and requested them to close the plaintiff's business as soon as practicable. The court, who tried the case without a jury, found as a fact that this letter revoked all previous limits on the flour of plaintiff in the hands of defendants. This letter was received by defendants. The usual course by mail required about eight days. On the 21st of December, 1853, Fagin sent a dispatch by telegraph to defendants, which was received by them the same day or the next day, instructing them to hold his superfine flour and retail his extra flour. The defendants did hold his superfine flour until the 17th day of January, 1854, on which day, and on the following days, up to the 20th of the same month, they sold the superfine flour of the plaintiff at seven dollars per barrel--the whole lot of 1149 barrels. This was done without any order from the plaintiff, after the dispatch of the 21st of December. On the 31st of January, 1854, the plaintiff sent a dispatch by telegraph to defendants directing them to sell his flour after the receipt of the “Atlantic's” news. This dispatch was received by defendants on the 1st of February, 1854; and on the same day the ““Atlantic's” news was published in New Orleans. The market price for superfine flour in New Orleans on that day and a few succeeding days was from $7.75 to $7.87 1/2 per barrel. The flour would have realized in market, if it had been retained under the plaintiff's dispatch until the 1st of February, 1854, not less than seventy-five cents per barrel net more than the price at which it was previously sold.

Now the question here, which was submitted to the court below for trial, was whether the defendant had sold the plaintiff's flour contrary to orders; and the construction of the dispatch and letters on this subject was necessary to a proper solution of this question. In this case the meaning or construction of the dispatches has been found by the court as a fact in the same manner as the jury would have found facts.

In Brown & Co. v. McGran, 14 Peters, 493, Mr. Justice Story, in delivering the opinion of the court, said: “It is certainly true, as a general rule, that the interpretation of written instruments properly belong to the court and not to the jury; but there certainly are cases in which, from the different senses of the word used, or their obscure and indeterminate reference to unexplained circumstances, the true interpretation of the language may be left to the consideration of the jury for the purpose of carrying into effect the real intention of the parties. This is especially applicable to cases of commercial correspondence, where the real objects and intentions and agreements of the parties are often to be arrived at only by allusions...