Schmidt & Zeigler, Ltd. v. Le Bourgeois & Bush, Inc.

• Decision Date: 05 May 1930
• Docket Number: 27436
• Citation: 170 La. 625,128 So. 656
• Parties: SCHMIDT & ZEIGLER, Limited, v. LE BOURGEOIS & BUSH, Inc
• Court: Louisiana Supreme Court

128 So. 656

170 La. 625

SCHMIDT & ZEIGLER, Limited, v. LE BOURGEOIS & BUSH, Inc

No. 27436

Supreme Court of Louisiana

May 5, 1930

Appeal from Civil District Court, Parish of Orleans; M. M. Boatner Judge.

Suit by Schmidt & Zeigler, Limited, against Le Bourgeois & Bush Incorporated.Judgment for plaintiff, and defendant appeals.

Amended and as amended affirmed.

Milling Godchaux, Saal & Milling, of New Orleans, for appellant.

Dufour, Rosen & Kammer, of New Orleans, for appellee.

OPINION

ROGERS, J.

The defendant company appeals from a judgment condemning it to pay the plaintiff company a large sum of money as damages for breach of contract to sell and deliver a number of barrels of sugar.

There is no dispute between the parties as to the agreement to sell and the failure to deliver the sugar, the defendant company seeking to escape liability for its default solely on the ground that it acted in the transaction as the broker of J. N. Pharr & Sons, Limited, and not as a principal.

The plaintiff company purchased the sugar from the defendant company through the brokerage firm of Jourdan & McCall.The contract stipulated for the sale and delivery of five cars (approximately 150 barrels each) of granulated sugar, Glenwild brand, and 1,000 barrels of the same brand of prime yellow clarified sugar.It was originally oral, but was promptly confirmed by the brokers, Jourdan & McCall, by letters addressed to the respective contracting parties.The defendant was addressed in its corporate name, without any indication of agency.The letter began: "This will confirm purchase made from you yesterday."It also set forth that, "Schmidt & Zeigler is to make a deposit of $ 5.00 per bbl. at once with you on this purchase."No disclaimer was made at that time by the defendant company that it was acting merely as an agent and not as the principal.On the contrary, the defendant company, acting through its officers, prepared and sent the plaintiff company a form of receipt which it proposed to issue in its own name for the deposit (subsequently waived) contemplated by the contract.

The defendant company performed that part of the contract calling for the delivery of five cars of granulated sugar.This sugar, about which no complaint is made, was invoiced to the plaintiff company by the defendant company in its own name and not for account of any one else.These invoices, with one exception, were paid by the plaintiff company to the defendant company direct.The exception was one shipment for which the plaintiff company also received an invoice from J N. Pharr & Sons, Limited, which company it paid, after receiving the consent of the defendant company to do so.All shipping instructions were given to the plaintiff company by the defendant company either direct or through the brokers, Jourdan & McCall.At no time did the defendant company claim that it was not acting as a principal, but as a broker in the transaction, until it became certain that the contract would not be fulfilled, when the defendant company, for the first time, disclaimed liability.Prior to this, some yellow clarified sugar of the Glenwild brand was by sample tendered by the defendant company to the plaintiff company, but was rejected by the latter company as being under grade.Subsequently, the defendant company offered to furnish sugar of other brands, but even these sugars graded below that of prime yellow clarified, and they were refused by the plaintiff company.The defendant company then failed to deliver the prime yellow clarified sugar stipulated in the contract, and the plaintiff company having,...