Justice v. Brock

Decision Date07 April 1913
Docket Number721
Citation131 P. 38,21 Wyo. 281
PartiesJUSTICE ET AL. v. BROCK
CourtWyoming Supreme Court

Rehearing Denied August 2, 1913, Reported at: 21 Wyo. 281 at 298.

ERROR to the District Court, Sheridan County, HON. CARROLL H PARMELEE, Judge.

The action was brought by Theodore Justice, Henry Justice William Warner Justice, James Bateman and Henry K Kenderdine, co-partners doing business under the firm name and style of Justice, Bateman and Company, against A. L. Brock. From a judgment in favor of the defendant the plaintiffs brought error. The material facts are stated in the opinion.

Reversed.

Enterline & La Fleiche, for plaintiffs in error.

The wool having been consigned without instructions or directions to the plaintiffs, who made large advances thereon, the defendant was not in a position authorizing him to control absolutely the sale by the factor or direct the time of sale and price, nor did his letters introduced in evidence amount to a positive direction that the wool be sold without further delay. (Heffner v. Gwynne-Treadwell Cotton Co., 87 C. C. A. 606; Drumm-Flato Com. Co. v. Union Meat Co., (Tex. Civ. App.) 77 S.W. 634; Poels v. Wilson, (Neb.) 108 N.W. 153; Poels v. Brown, (Neb.) 111 N.W. 798; Gordon v. Cobb, 60 S.E. 821; Brown v. McGram, 14 Pet. 479; 12 Ency. Law, (2nd Ed.) 646; Sturtevant Co. v. Dugan, 14 Ann. Cas. 675; Field v. Farrington, 10 Wall. 141; Wynne et al. v. Schnabaum, (Ark.) 94 S.W. 50.) To authorize a recovery by the defendant it was necessary that he should allege and prove that the failure to sell the wool at the best market price obtainable was due either to the fraud of the plaintiffs, or their failure to exercise ordinary care, skill and diligence, and that as a consequence he suffered the damage complained of. And the burden of proof was upon the defendant to establish those facts, if alleged. But the answer is defective in failing to properly allege these material matters.

A factor, as shown by the cases cited, and others, is only bound to exercise ordinary and reasonable care, skill and diligence in selling the consigned commodity at or within the market to which it is shipped for sale. Proof of sales made by the same or other parties, even though it be within the same market, does not of itself establish negligence on the part of the factor. It was error to permit the introduction of evidence as to the sale of wool by other parties in Philadelphia and elsewhere. (Pugh v. Porter Bros. Co., 50 P. 772; Lockett v. Baxter, 19 P. 23; Patterson v. Whaley, (Ga.) 66 S.E. 804.) The furnishing of market quotations by the plaintiffs to the defendant did not affect the matter in issue, for such quotations did not represent the price that wool could be sold for on the market each week. Market quotations may be based on sales actually made, few or many, and they are also given in the absence of any sales and based merely upon prices asked. The quotations furnished therefor were in no respect evidence of negligence on the part of the plaintiffs.

The defendant was given the privilege of opening and closing the argument. That was prejudicial to the rights of the plaintiffs. (Comp. Stat. 1910, Secs. 4391, 4499.)

Metz & Sackett, for defendant in error.

The evidence clearly sustains the verdict by showing that the failure of the plaintiffs to sell defendant's wool was caused solely by their negligence. The lowest price during all the time in controversy for the grade of wool consigned was much greater than that for which it was subsequently sold, and enough to pay all advances and charges and the amount now demanded by the defendant as damages. The contract of consignment included a guaranty of sale. Such a guaranty we believe to mean a sale within reasonable time at the then market price. The February letter of the defendant requesting that his wool be sold, but not at too much of a sacrifice, is to be regarded as a direction to sell, even though at some sacrifice. An agent cannot put himself in an antagonistic relation to his principal and may not deal for his own benefit respecting the business of the agency. (Mechem on Agency, Secs. 454-457.) It was a question for the jury whether or not the plaintiffs refused to follow the defendant's instruction, and made the sales that were made because of the advances, or because of negligence. (Butterfield v. Stevens, (Ia.) 13 N.W. 751.) The plaintiffs are not in a position to now take advantage of any error in the instructions complained of for the reason that the case was not tried upon the theory now advanced, and no instructions were requested upon any such theory. (Bunce v. McMahon, 6 Wyo. 24; Cosgriff v. Miller, 10 Wyo. 190; McKnight v. R. R. Co., 44 Minn. 141; Mullen v. Wilson, 44 Pa. St. 413; Simms v. R. R. Co., 3 S.E. 301; Schuman v. Johnson, 66 Tex. 70; Sutherland v. Shelton, 59 Tenn. 374; Knoxville v. Bell, 80 Tenn. 157; Cook v. Wootters, 42 Tex. 294; Ins. Co. v. Ice Co., 64 Tex. 578; Ins. Co. v. Tile Co., 43 N.E. 41; Hindman v. Timme, 35 N.E. 1046; Mackie v. Cent. R. R. Co., 6 N.W. 723; McQuillan v. Seattle, 13 Wash. 600, 43 P. 893; Barton v. Grey, 24 N.W. 638; Schroeder v. Webster, 88 Ia. 627, 55 N.W. 569.) Where a party wishes more specific instructions, the instructions given being correct so far as they go, he must request the giving of them. (Northern Pac. R. Co. v. Mares, 123 U.S. 710; Burlington R. Co. v. Schluntz, 14 Neb. 425, 16 N.W. 439; Eppert v. Hall, 133 Ind. 417, 31 N.E. 74; Wimer v. Allbaugh, 78 Ia. 79, 42 N.W. 587; Haymaker v. Adams, 61 Mo.App. 581; Kelly v. Houghton, 59 Wis. 400, 18 N.W. 326; Sudlow v. Warshing, 15 N.E. 532; Burkholder v. Stahl, 58 Pa. 371; Wiggins v. Guthrie, 101 N.C. 661, 7 S.E. 761.)

The admission of evidence as to sale and price at other places than Philadelphia was not prejudicial or erroneous, for the reason that it appeared by the testimony of the plaintiffs that wool prices within this country are based upon the Philadelphia market.

The rule of Brown v. McGram, 14 Pet. 479, and other decisions following that case, does not apply to this case. That was a case where the consignor attempted to delay sales by the factor, the latter claiming that it was necessary for him to sell to protect the advances made. The question is a different one, however, where the instructions are to sell, and where, if sales are made according to the instructions, the advances made will be fully protected. The factor has no right to disobey the instructions of his principal except where it becomes necessary to protect his interest in the consigned property. If the property will bring the advances made by the factor, then the general rule is the same as though no advances had been made. (Butterfield v. Stevens, 13 N.W. 751; Weed v. Adams, 37 Conn. 378; Phillips v. Scott, 43 Mo.App. 86, 97 Am. Dec. 369; Rice v. Brock, 20 F. 611; Spruell v. Davenport, (N. C.) 20 S.E. 1022; Johnson v. Wade, 61 Tenn. 480; Howland v. Davis, 40 Mich. 545.) Where there is no attempt, either in the pleadings or during the trial, to show that the failure to obey the instructions of the principal was necessary to protect the advances, the question cannot thereafter be raised. (Benedict v. Inland Grain Co., 80 Mo.App. 449; Phillips v. Scott, supra; Weed v. Adams, supra; Rice v. Brock, supra; Butterfield v. Stevens, supra.) The evidence was sufficient to sustain the verdict. (Benedict v. Grain Co., supra; Field v. Farrington, 10 Wall. 141; Atchison v. Burton, 67 Ky. (4 Bush) 299; Linsly v. Carpenter, 27 N.Y.S. 200; Usborne v. Stephenson, 48 L. R. A. 432; Burnett et al. v. Hockaday, 61 Mo.App. 628; Howland v. Davis, supra.) It is the duty of the factor as a general rule to sell at the market price. (12 Ency. Law, (2nd Ed.) 658, 659; Davis v. Cotton Mills, 178 F. 784; Bigelow v. Walker, 24 Vt. 149, 58 Am. Dec. 156.) It is contended by counsel for plaintiffs that the weekly market quotations furnished by the defendant to the plaintiffs were not competent evidence of their contents, or as to market prices. That is not the law. (Sisson v. R. R. Co., 14 Mich. 489; Kibler v. Caplis, 140 Mich. 28, 103 N.W. 531, 112 Am. St. 388; C. B. & Q. R. Co. v. Todd, 74 Neb. 712, 105 N.W. 83; Tex. Cent. Ry. Co. v. Fisher, 18 Tex. Civ. App. 78, 43 S.W. 584; Aulls v. Young, 98 Mich. 231, 57 N.W. 119; Bank v. City, 56 N.E. 288.) A part of said reports were introduced by the plaintiffs and the remainder by the defendant, and all are in the record without objection. The following are additional authorities supporting the proposition that the plaintiffs cannot now change the theory upon which they transacted the business, prepared the pleadings and conducted the trial: 2 Cyc. 670, 671; 3 Cyc. 243; Aaron v. Holmes, (Utah) 99 P. 450; Silver Peak Mines v. Judicial Dist., (Nev.) 110 P. 103; Bank v. Ketchum, (Neb.) 96 N.W. 614; Parker v. Ins. Co., (Neb.) 97 N.W. 280; Rutter v. Carothers, (Mo.) 122 S.W. 1056; Zeller & Co. v. Vinardi, (Ind.) 85 N.E. 378; Lesser Cotton Co. v. R. R. Co., 114 F. 133.

SCOTT, CHIEF JUSTICE. POTTER, J., and BEARD, J., concur.

OPINION

SCOTT, CHIEF JUSTICE.

The plaintiffs in error as co-partners brought this action in the court below as plaintiffs to recover from the defendant in error as defendant upon an alleged balance on an account for advances made by them as factor upon a consignment of wool, interest on such advances, and commission on the sale. The case was tried to a jury and a verdict returned in favor of the defendant for the sum of $ 2,000 upon his counter-claim for damages for an alleged failure to sell the wool at the market price and as directed by the defendant. A motion for a new trial was overruled, judgment was rendered upon the verdict, and the plaintiffs bring error.

1. It is assigned as error that the verdict is unsupported by the...

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