Hogg v. Cardwell

• Decision Date: 31 December 1856
• Citation: 36 Tenn. 151
• Parties: HOGG & BELCHER v. L. H. CARDWELL.
• Court: Tennessee Supreme Court

36 Tenn. 151

HOGG & BELCHER

v.L. H. CARDWELL.

Supreme Court of Tennessee.

December Term, 1856.

FROM SMITH.

The plaintiffs and defendant, on the 18th of May, 1854, entered into the following contract, which was signed by them respectively: “Article of agreement between Hogg & Belcher of the one part, and Leonard H. Cardwell of the other part, viz.: Said Hogg & Belcher shipped per steamer Hartsville, on the 28th day of March last, twenty-seven hogsheads of tobacco to Perkins, Campbell & Co., marked “H. & B.;” and on the 24th of April last, per same steamer, to R. Yeatman & Co., forty-two hogsheads, same mark; and on the 6th inst., per steamer Cape May, to Perkins. Campbell & Co., three hogsheads, same mark; and on the 14th inst., per steamer Hartsville, to Perkins, Campbell & Co., four hogsheads, same mark; all of which we have this day sold to L. H. Cardwell at five and a quarter cents per pound, to be settled by New Orleans weights. Said Cardwell agrees on his part that said Hogg & Belcher may keep the bills of lading, and that the accounts of sale may be made out and proceeds paid to them; and further agrees to pay the storage at the river levee, the insurance, freight and all other expenses attending the same after leaving the landing levee; and if, after counting all at five and a quarter cents, there is any deficit, he agrees on his part to pay the deficit to said Hogg & Belcher; and if, after counting the same at five and a quarter cents, any overplus remains, said Hogg and Belcher agree to pay the same to said Cardwell.” Under the direction of the plaintiffs, the sale of the tobacco was made by the factors at New Orleans, the amount of which fell short in the sum of $2,000 of yielding to the plaintiffs the stipulated price after the deduction of the necessary expenses. For the recovery of this “deficit” this action of assumpsit was instituted in the circuit court of Smith county. The defendant, in addition to the general issue, pleaded specially that, according to the legal effect of the contract, he had the sole control and direction of the sale of the tobacco; that the plaintiffs had usurped that right, and, by combining with the factors for his injury, had forced the tobacco upon the market, against his wishes, at an inauspicious time, whereby he was damaged to the amount of $2,000, which he claimed in abatement of the plaintiff's recovery. To this plea there was a demurrer, which was overruled by the court. The defendant also introduced testimony to show that the plaintiffs, at the time of the execution of the contract, had made extravagant representations as to the value of the tobacco, by which he was deceived and induced to make the purchase; and upon this ground he claimed a recoupment of the plaintiffs' demand. At the March term, 1856, before Judge Goodall, there was a verdict and judgment for the defendant; from which the plaintiffs appealed.

Jordan Stokes, for the plaintiffs; Fite and Head, for the defendant.

Caruthers, J., delivered the opinion of the court.

On the 18th May, 1854, the plaintiffs sold to the defendant seventy-six hogsheads of tobacco, which had already been shipped to various commission houses in New Orleans, at 5 1/4 cents per pound, “to be settled by the New Or leans weights. Said Cardwell agrees on his part that said Hogg and Belcher may keep the bills of lading, and that the accounts of sales may be made out and proceeds paid to them; and further agrees to pay the storage at the river levee, the insurance, freights, and all other expenses attending the same after leaving the landing levee; and if, after counting all at five and a quarter cents, there is any deficit, he agrees to pay it to Hogg & Belcher; but if any surplus remains, said Hogg & Belcher agree to pay the same to said Cardwell.” This agreement in writing was signed by the parties.

The tobacco was sold, and the proceeds paid to the plaintiffs.

There was a deficit or loss to Cardwell of about $2,000, as is alleged, for which this suit is brought. The recovery was resisted upon two grounds:

1. Because the sale of the tobacco in the hands of Yeatman & Co., by the order of the plaintiffs, was prematurely made, and a much larger price would have been obtained if it had been held up until the month of December, as it should have been, in conformity with the wishes of Cardwell. Such is the evidence of Yeatman, who also states that, if left to his own judgment and the instructions of Cardwell, he would not have sold so soon. The defendant's third plea raises the question of his right to damages on this ground, which he claims he is entitled to recover.

The demurrer to this plea was overruled. Whether this was correct, is the first question. And that depends upon the construction of the written contract. The plea is based upon the idea that the defendant had a right to control the sale, and of this opinion was the court. In this construction, we can not concur, and therefore think the plea was not good, and the demurrer should have been sustained.

The tobacco had been shipped, and the parties traded upon their respective opinions and calculations as to the prospects of a profit. The sellers preferred 5 1/4 cents to taking the chances of the market; and the buyer, with the same means of forming an opinion, was willing to risk it, and look to an enhanced price for his profits. His object was, of course, to make a...