Howard v. Smith

• Decision Date: 31 March 1874
• Citation: Howard v. Smith, 56 Mo. 314 (Mo. 1874)
• Parties: ROBERT S. HOWARD, et al., Respondents, v. FREDERICK W SMITH, Appellant.
• Court: Missouri Supreme Court

56 Mo. 314

ROBERT S. HOWARD, et al., Respondents,

v.FREDERICK W SMITH, Appellant.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

Slayback & Hæussler, for Appellant.

I.A merchant assenting to sell on orders is not at liberty to disobey them.(Given vs. Lemoine, 35 Mo., 119.)

II.If respondent received our order to sell at seventy cents. and telegraphed that they were selling as fast as possible, they should certainly account at that price for all sold after that date.

S. M. Smith, for Respondents.

“There can be no doubt of the proposition, that in a case where the protection of the factor himself becomes necessary, his discretion as to time, price and place of sale would be complete and unlimited even by positive instructions.”(Phillips vs. Scott, 43 Mo., 92;see alsoGiven vs. Lemoine, 35 Mo., 119;Denny vs. Rhodes, 18 Mo., 152;Brown vs. McGraw, 14 Pet., 479;1 Sand., 360.)WAGNER, Judge, delivered the opinion of the court.

The plaintiffs, who were commission merchants at New Orleans, received in June, 1870, a consignment of 310 sacks of oats from defendant, and also purchased for defendant at his request 2065 sacks of oats in the same month, making in all 2375 sacks, held by plaintiffs from purchase and consignment as factors for defendant and on his account.Plaintiffs made a large advance on the oats consigned to the defendant, and on July 27, 1870, defendant ordered the plaintiffs to sell the oats at sixty-seven cents per bushel or better.That price could not be obtained for the oats in the market, and they were not sold.On August 4, 1870, plaintiffs drew a draft on defendant for $1000, as margin on said oats, which draft was not paid.On Sept. 20, 1870, plaintiffs again wrote to defendant asking him if they should sell, and saying that after waiting reasonable time they should proceed to sell.They however still continued to carry the oats till December 28, 1870, when they drew another draft on defendant for $1,500 to indemnify them, but this draft was not paid.Plaintiffs waited till January 11, 1871, and then commenced selling at the prevailing market prices.On the 27th day of January, 1871, defendant instructed the plaintiffs to sell the oats at seventy ents per bushel, unless they believed that oats would go igher, and plaintiffs replied that they were selling as fast as possible.The evidence shows that the oats were sold at full market prices, but they did not bring the amounts limited by the defendant in his instructions; and after crediting the defendant with the money realized from their sale, there was found to be a balance due to plaintiffs for which they brought their action.In the Circuit Courtthey obtained judgment.

The main question is, whether the plaintiffs had the right to sell to re-imburse and protect themselves for their advances and liabilities incurred for, and on account of, the defendant.

Gamble, J. in his opinion in Denny vs. Rhodes, (18 Mo., _47,) says that a factor may sell, to re-imburse his advances, so much of the consignment as is necessary for that purpose, if the sale is made in the usual mode; and in Phillips vs. Scott, (43 Mo., 92,) it was declared that there could be no doubt of the proposition, that in a case where the protection of the factor himself against loss became necessary, his discretion as to time, price and place of sale would be complete and unlimited, even by positive instructions.

In the leading case of Brown vs. McGraw, (14 Pet., 479,) it...