Meier v. Goebel-Reid Grocery Co.

• Decision Date: 08 October 1929
• Docket Number: No. 20588.,20588.
• Parties: MEIER v. GOEBEL-REID GROCERY CO.
• Court: Missouri Court of Appeals

20 S.W.2d 605

MEIER v. GOEBEL-REID GROCERY CO.

No. 20588.

St. Louis Court of Appeals. Missouri.

October 8, 1929.

Rehearing Denied October 23, 1929.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by John J. Meier, doing business as John J. Meier & Co., against the Goebel-Reid Grocery Company. From a judgment for defendant, plaintiff appeals. Affirmed.

James J. Milligan, of St. Louis, for appellant.

Kurt Von Reppert, of St. Louis, for respondent.

SUTTON, C.

This action is for the recovery of $678, and interest, by way of damages, for the breach of a contract of sale of 600 sacks of H. & E. standard granulated sugar, containing 100 pounds per sack, at $8.00 per 100. The trial, with a jury resulted in a verdict and judgment for defendant, and plaintiff appeals.

There is not much dispute about the facts. On February 27, 1923, plaintiff was, and had been for many years, engaged in the business of buying and selling sugar, on his own account, in the city of St. Louis. H. H. Miller & Co. were sugar brokers in said city, engaged in buying and selling sugar as such brokers. Defendant, Goebel-Reid Grocery Company, was engaged in buying and selling sugar on its own account. On February 27th, plaintiff talked with Edward M. Read of H. H. Miller & Co. on the telephone, and told him that plaintiff was in the market for two cars of sugar for delivery at New Orleans. Read said he would see, and call plaintiff back and tell him what he could get for him. Thereupon Read called defendant, Goebel-Reid Grocery Company, on the telephone, and was told by that company that it had a car of sugar under contract at New Orleans for delivery in St. Louis, which, so far as it knew, had not been shipped, and that he could sell this car at $8.00 per 100, subject to being unshipped. Later on in the day Read called back on the telephone, and told plaintiff he could get one car of sugar for delivery at New Orleans at $8.00 per 100. Plaintiff told Read that that was satisfactory, and that he would take the car, together with any more that he could find. Afterwards, on the same day, Read called plaintiff back, and told him that the seller was Goebel-Reid Grocery Company. Read made out a sales memorandum, and mailed one copy to the plaintiff and another to the defendant. This memorandum showed an absolute sale, with no mention of the condition that the car was unshipped. Plaintiff informed Read that he desired the sugar to be delivered to Joseph Gillon & Co. at New Orleans, and wired the American Sugar Refining Company to deliver the sugar to said company. Defendant also sent a telegram to the American Sugar Refining Company, directing the delivery of the sugar to Joseph Gillon & Co. Defendant received the sales memorandum in the mail on the morning of February 28th, and at the same time received a postal card from the American Sugar Refining Company informing defendant that the car of sugar it had under contract had been shipped on February 26th. Thereupon, defendant, in a talk with Read over the telephone, told him that the car had been shipped and was in transit to St. Louis, and directed him to cancel the sale, and told him that it would destroy the sales memorandum it had received. Read did not notify plaintiff of this conversation, and plaintiff knew nothing of it, and knew nothing of the want of authority on the part of Read to make absolute sale of the car of sugar, until March 8th. Later in the day on which defendant told Read the car had been shipped and was in transit, Read, with defendant's authority, sold the same car to plaintiff at $7.90 per 100 for delivery at East St. Louis. Thereupon, the car was delivered to and accepted by plaintiff at East St. Louis. Plaintiff did not know he was purchasing the same car that he had previously purchased, but supposed that it was a different car. Read, testifying for plaintiff, admitted that defendant on the morning of February 28th called his attention to the fact that the car sold to plaintiff on February 27th had been shipped and was in transit, but stated that he did not know that it was the same car sold on February 28th.

It was shown to be a rule and custom of the trade in St. Louis that when a broker sends out copies of a sales memorandum to both the buyer and the seller, and the memorandum does not correspond with the terms and conditions of the sale, either the buyer or seller may disapprove or reject it.

About March 8, 1923, the defendant, in checking over brokerage accounts sent by H. H. Miller & Co. to defendant, discovered that charges for brokerage were made for the sale of February 27th, and also for the sale of February 28th. Defendant immediately called this to the attention of Read, and told him that this was a double charge, and that defendant would pay only for the sale of one car of sugar, as only one car was sold. Read waived the double charge, and accepted payment of brokerage for one car only. A conference was then held between Read and representatives of plaintiff and defendant, in which Read admitted that he had forgotten to notify the plaintiff that the car of sugar which he bought for plaintiff on March 27th had been shipped. The defendant did not know, prior to this conference, of the failure of Read to notify plaintiff of such shipment.

The errors assigned relate to the giving of defendant's instructions Nos. 3, 4, and 5. There is, however, really but one point involved in plaintiff's criticism of the instructions. It is, in substance, this: That the broker was no longer the agent of the plaintiff after he wrote and signed the sales memorandum and sent copies thereof to plaintiff and defendant; that the notice given to Read by defendant on the morning of February 28th of the rejection of the sale was a notice merely to its own agent, and not to the agent of the plaintiff; that plaintiff was therefore not affected by such notice; and that the instructions were erroneous for allowing the jury to return a verdict for defendant on the theory that Read was the agent of the plaintiff, if the jury found from the evidence he was such agent. In other words, plaintiff contends that there was no evidence to justify the submission of that issue to the jury.

In Schlesinger v. Texas & St. Louis Ry. Co., 87 Mo. 146, our Supreme Court held that a broker for the purpose of signing the memorandum of the sale is the agent of both parties to the contract which he makes, but that in other respects he is only the agent of the party originally employing him. A like rule was announced in the same case by this court (13 Mo. App. 471), whence the case went on appeal to the Supreme Court.

In Fruit Auction Co. v. F. Quattrochi and Son (Mo. App.) 200 S. W. 709, this court announced the general rule that a broker is ordinarily a special agent who derives his power and authority to bind his principal from the instructions his principal gives him, and that he cannot bind his principal beyond the limit of the authority conferred upon him.

The same rule is announced in Mechem on Agency, at page 1045, as follows:

"At the outset the broker is the agent of the party who first employed him, but he becomes the agent of the other also, when the latter instructs him to close the bargain, or deals with him as representing...