Saladin v. Mitchell
| Decision Date | 30 September 1867 |
| Parties | WILLIAM SALADINv.JOHN MITCHELL. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.
The facts in this case are fully stated in the opinion.
Mr. JAMES L. STARK, for the plaintiff in error.
Mr. O. B. SANSUM, for the defendant in error. Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:
This was an action of assumpsit brought to the Circuit Court of Cook county, at the March Term, 1866, by John Mitchell against William Saladin, to recover damages for not receiving and paying for 3,000 bushels of barley, parcel of 5,000 bushels, which plaintiff alleged he had, before that time, sold to the defendant at $1.33 per bushel afloat, subject to storage at two cents per bushel.
The plea was non-assumpsit, and a trial had by the court without the intervention of a jury, and a verdict and judgment for the plaintiff.
The record is brought here by writ of error by the defendant, to reverse this judgment.
It appears, the plaintiff, about the 5th of November, 1865, had a lot of barley on board the brig “Hercules,” then in the port of Chicago. He employed Theodore D. Hall, a grain broker in the city, to sell it for him, who, on the 6th of November, made a sale of 5,000 bushels of the cargo, to the defendant, at which time this paper was signed by him:
“I have bought of Mr. Hall 5,000 bushels of barley as per sample, on brig “‘Hercules,’ at $1.33 afloat, and storage two or two and a half cents, good for fifteen days.
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¦November 6, 1865.¦WM. SALADIN.”¦
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At the same time this sold note was executed:
“Sold to Saladin 5,000 bushels Canada barley, now on brig ‘Hercules,’ at $1.33 afloat, subject to storage of two cents -- good for fifteen days.
T. D. HALL.”
The barley not being taken from the brig, it was stored, on the 8th of November. The defendant took away, time not stated, 1,000 bushels of the barley, and about December 2d, another thousand bushels, and paid for it, but to whom the record is silent. Defendant knew Hall was a broker, and six weeks after the sale Hall saw defendant, and advised him he had better go and see the plaintiff, -- that the barley was waiting for him; that he saw defendant a second time -- once with Reed, and once with the plaintiff's brother. Hall was the only person authorized to sell the barley for the plaintiff. There was a counterpart of the above memorandum executed at the same time with the original. The price of barley was for first class, like this, from $1.30 to $1.35, for ten days after November 20th, and so remained until the opening of navigation.
In March, 1866, the plaintiff commenced this action. In May following, about the 4th, the barley being in store, plaintiff sold some of it at 97 1/2 cents, about 2,744 bushels; it was first quality, and worth 95 cents in market; this purchaser paid two and a half cents more per bushel, because plaintiff gave him ten thousand bushels of his own barley to malt. About the last week in April, plaintiff sold to another person 500 bushels, at $1.02 per bushel for the lot; the market price was then about one dollar, but this purchaser paid two cents more because it was a small lot and first quality.
The first question on these facts is, was there a sale of 5,000 bushels of barley by the plaintiff to the defendant on November 6, 1865?
It is insisted by the plaintiff in error, that the only contract of sale is the one evidenced by the bought and sold notes signed on the 6th of November, and they show, it was made by another person, to wit, T. D. Hall. He contends it was a contract with Hall, and he alone can maintain an action for its breach. The authority referred to on this point, in 2 Smith's Leading Cases, 358, applies to cases where a purchase is made by an agent, his principal not being disclosed. In such cases it is the established rule, where the contract is not under seal, and made by an agent in his own name for an undisclosed principal, either the agent or principal may sue on it; the defendant, in the latter case, being entitled to be placed in the same situation at the time of the disclosure of the principal as if the agent had been the contending party, that is, that he may avail of any payment made in good faith to the agent, before the disclosure. Although this rule is most frequently acted on in sales by factors, agents or partners, in which cases either the nominal or real contractors may sue, yet it may be equally applied to other cases. Per DENMAN, Ch. J., in Sims v. Bond, 5 Barn. & Adolp. 389, and 27 Eng. C. L. 97.
The business of a factor and a broker are in many respects unlike, and in some similar. They are both agents of the owner to sell property. A broker is an agent employed to make bargains and contracts between other persons in matters of trade, for a compensation commonly called brokerage, or, in the language of Lord Chief Justice TINDAL, “a broker is one who makes a bargain for another, and receives a commission for so doing.” He is a mere negotiator between other parties, and never acts in his own name, but in the name of those who employ him. When he is employed to buy or sell goods, he is not intrusted with the custody or possession of them, and is not authorized to buy or sell them in his own name. He is a middle man, and for some purposes is treated as the agent of both parties. Where he is employed to buy and sell goods, it is the custom to give to the buyer a note of the sale, called a sold note, and to the seller a like note, called a bought note, in his own name, as agent of each, whereby they are respectively bound, if he has not exceeded his authority. Hence it is, if a broker sells the goods of his principal in his own name, without some special authority so to do, inasmuch as he exceeds his authority, the principal will have the same rights and remedies against the purchaser as if his name had been disclosed by the broker. Story on Agency, § 28.
In this case, Hall was not intrusted with the custody or possession of the barley, but was only employed to sell for the owner, and not in his own name. Without...
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