Stebbins v. Walker

• Decision Date: 13 April 1881
• Citation: 46 Mich. 5,8 N.W. 521
• Court: Michigan Supreme Court
• Parties: STEBBINS v. WALKER and another.

8 N.W. 521

46 Mich. 5

STEBBINS v. WALKER and another.

Supreme Court of Michigan

April 13, 1881

Facts in this case, as detailed in the opinion, held to make out a plain case of estoppel.

Error to Wayne.

Latham & Case, for plaintiff in error.

John W McGrath and C.J. Walker, for defendants in error.

COOLEY, J.

This case was sent to a referee by the circuit court, and judgment was given in favor of defendant on the referee's report. The important facts in the case are the following: For sometime prior to June, 1879, and up to August of that year plaintiff was a dealer in grain at Vermontville in this state, and defendants were commission brokers and members of the board of trade of Detroit. As commission brokers they had bought and sold for the plaintiff previous to the thirtieth of June, 1879, and made advances which were all settled on that day. On August 14, 1879, plaintiff made a conditional sale of his business to his brother Osmyn G. Stebbins. The conditions were to be performed within a week thereafter, but they were not performed, and at the end of the week plaintiff resumed his business and took possession of his property which in the meantime his brother had had and controlled. A few days before this the defendants had written the plaintiff, soliciting his shipments, and in reply they received the following letter:

"Office of O.J. STEBBINS, Thornapple Valley Mills, and dealer in grain, feed, land, plaster, etc.

"VERMONTVILLE MICH., Aug. 14, 1879.

"Messrs. Walker, Sumner & Co.: Your letter of the fourth of August was duly received at my stopping place, and by reason of my absence from home and general inattention to business lies unanswered. At the opening of the new crop trade this season I did not think I should engage in active work at all at present; and as I am yet unable to labor, I do not know when I shall take hold again. I am now seriously contemplating a trip to Colorado. My brother is at work in a mild way in the wheat business, but he has so far seen fit to ship to another party, from whom he gets the same rebate as you offer. His initials are the same as my own, so that if you choose to correspond with him, the same direction will reach him as myself. Thanking you for your efforts in my behalf, I remain truly yours,

"O.G. STEBBINS."

This letter was understood by defendants to mean that the plaintiff intended to remain out of business for a time, and that the brother Osmyn was then in the wheat business in Vermontville, and thereupon they addressed a letter to Osmyn, soliciting his business. They also wrote to the plaintiff informing him how they understood his letter, and that they had solicited his brother's consignments. To this the plaintiff sent no reply, and until November 26th following defendants supposed the dealings with them in the name of O.G. Stebbins hereinafter mentioned were on behalf of Osmyn G. Stebbins, and had no information and no reason to suspect the contrary. These dealings began after September 17th on which day plaintiff left home for his health and remained absent until October 24th leaving his brother Osmyn in charge of his business. While he was gone Osmyn shipped to defendants five car loads of wheat in the name of O.G. Stebbins and for the plaintiff, but which defendants received, sold and accounted for, supposing it to be the wheat of Osmyn himself. On these dealings a balance remained due to the defendants of $74,64. There was also sent to defendants a car load of wheat which was placed in the elevator, but by reason of some mistake owing to a change of book-keepers was not credited to any one. This also belonged to the plaintiff. Early in November defendants also made a purchase of wheat and also a sale of it which they supposed to be for Osmyn, but which was in reality on an order from plaintiff, on which they realized a profit of $307.50 and which left standing to the credit of O.G. Stebbins on their books $232.86.

Osmyn G. Stebbins left his brother's employ November 5, 1879. On November 15th he telegraphed defendants from Jackson in the name of O.G. Stebbins, asking them to send him $700. Relying upon his personal credit they sent the money. At the same time he requested them to purchase for O.G. Stebbins 3,000 bushels of wheat for January delivery. With this request they also complied.

On November 26th defendant Walker was at Vermontville when he for the first time learned that plaintiff had resumed business, and that all the wheat dealings previous to November 15th had been conducted by Osmyn as agent, not as principal. Plaintiff told Walker he had no interest in the purchase of November 15th, but would take it off defendants' hands. This he could then have done at a profit of $150. Walker declined this offer, but said he would stand upon the purchase until he could realize $700 profit upon it, and then close it out. The wheat was afterwards sold, however, without profit. Afterwards plaintiff had other dealings with defendants which entitled them to claim from him $79.75. The car...