1. An agent may sue his principal in his own name on the
contract by which he was employed, though he be a member of a
mercantile house through which the correspondence necessary in the
transaction of the business was carried on.
2. The partners of the agent would not be parties to his
contract with his principal, even if he agreed to make them sharers
in the profits of it.
3. It is not erroneous for a judge of the circuit court to
disregard the written points of counsel and charge the jury in his
own way if he submits the facts fairly and gives his opinion fully
on every question of law arising in the case.
4. Where an agent goes beyond the letter of his instructions,
the principal must within a reasonable time repudiate the act or
else be bound by his acquiescence.
5. The customary meaning of a word among merchants is a matter
of fact for the jury to decide upon evidence.
6. A letter written by the master of a vessel to an agent of the
owner advising what shall be done for the owner's interest in an
emergency created in part by the act of the master himself, which
advice was followed by the agent to whom it is addressed, may be
given in evidence as part of the
res gestae.
7. Where an agent buys an article for his principal and the
price goes down, another agent of the same principal has no
authority to repudiate the contract unless specially directed to do
so.
This was assumpsit brought in the circuit court by Alexander
Cross, a subject of the British Queen, against George Law. The
declaration or complaint contained the common counts, which the
defendant answered with the plea of
non-assumpsit and a
notice of setoff.
It appeared on the trial that Law, the defendant, established a
line of steamers to run between Panama and San Francisco. The line
was composed of the
Isthmus, the
Republic, the
Columbus, and the
Antelope, which left New York
to take their places
Page 66 U. S. 534
in the line at different times in the spring of the year 1850.
The defendant employed Cross, the plaintiff, as his agent to make
purchases of coals for the use of these ships. He (the plaintiff)
was a member of a firm consisting of himself and four others, who
were engaged in trade at Valparaiso, under the name of Cross,
Hobson & Co., and at San Francisco under the name of Cross
& Co. The defendant addressed his letters uniformly to
Alexander Cross, but they were answered in the name of Cross,
Hobson & Co.
The plaintiff made several purchases of coals for the
defendant's ships under, and, as he alleged, agreeably to the
special orders of the defendant. But for some of those purchases
the defendant denied his liability to pay, averring that his
directions concerning them had been disregarded and violated.
When the
Antelope was about to sail for the Pacific,
the defendant advised Cross of the fact and directed him to
purchase for her 350 tons of good coal at Valparaiso, and draw for
the price. This was repeated twice afterwards. The plaintiff
advised the defendant promptly that coal was scarce at Valparaiso,
but he had purchased a lot for the
Antelope at the fine
port of Coquimbo, one day's sail further north. The coal was kept
at Coquimbo, ready to supply the
Antelope when she would
come. But she arrived at Valparaiso, long after she was expected,
in a crippled condition, and was obliged to stop there for repairs.
The master, by way of saving time, thought it best to buy other
coals at Valparaiso, where they could be put on board while the
repairs were in progress. Being so supplied, he recommended that
the coals purchased by Cross at Coquimbo should be sent to San
Francisco. This advice was adopted, the coals were shipped for San
Francisco, at a freight of $17 per ton, and the defendant was
informed of the whole transaction, without delay.
The defendant also directed the plaintiff to purchase two
cargoes of coal afloat, and send them to San Francisco as soon as
possible. Within four days after the receipt of this order, the
plaintiff answered that the order had been filled by the purchase
of 500 tons, the cargo of the
Lady Lilford, to be
delivered by that vessel at San Francisco, and 444 tons more,
the
Page 66 U. S. 535
cargo of the
Duncan, which was then at sea, with the
right to cancel the contract if she failed to arrive in sixty days.
Full details as to prices and freight accompanied this
communication. The cargo of the
Lady Lilford was duly
delivered at San Francisco, received and paid for. The
Duncan arrived within the stipulated time, but her master
being unwilling to carry the coals further, they were shipped on
board two other vessels. The
Charles T. took 350 tons, and
the balance, together with the 300 tons at Coquimbo, went by the
Amelia. Oliver Charlick, the general agent of the
defendant at San Francisco, refused to accept the coals brought by
the two last named vessels, and after various delays and much
negotiation, they were sold at auction for whom it might
concern.
The plaintiff's claim was for the price of the cargo bought at
Coquimbo for the
Antelope, the price of the
Duncan's cargo bought for the general purposes of Law's
line, with the freights, duties, expenses, and commissions, less
the amount of the sales at San Francisco.
After the evidence was closed, the defendant's counsel divided
the law of the case into twenty-eight points and requested the
court to instruct the jury on each of them. Mr. Justice Nelson, who
presided at the trial, gave his opinion of the legal principles
involved without reference to this request. The substance of the
charge, omitting details, and briefly stated, was this:
1. Cross had a right to sustain this action in his own name,
though he was the partner of others, who did some or all of the
business, because the contract was made by the defendant with Cross
alone, and the correspondence showed that the defendant never
recognized anybody but him as being concerned.
2. It was a question for the jury to determine whether the
purchase of the
Duncan's cargo, while the vessel was still
at sea, was a purchase of coal afloat in the proper sense of the
word as used in the defendant's order, but in the opinion of the
judge it could make no substantial difference whether the contract
was before or after the arrival of the vessel at the port of
Valparaiso.
Page 66 U. S. 536
3. Whether the plaintiff's purchase of coal at Coquimbo for the
Antelope was within the order to buy it at Valparaiso, so
as to make the defendant responsible for the price of it, might be
doubtful under the peculiar circumstances of the case, but the
shipping of that coal to San Francisco was undoubtedly beyond the
authority given to the plaintiff, and the advice of Captain
Hackley, the master of the
Antelope, that it should be
sent there did not help the matter. But,
4. If the defendant was informed that his agent had, on his own
judgment, departed from his instructions, he the principal was
bound within a reasonable time to advise the agent that he did not
mean to ratify his acts. Otherwise he must be taken to have
acquiesced in what was done, and was concluded from disputing the
agent's authority. This rule, the judge said, was essential to
secure just dealing between principal and agent, but whether this
case came within its operation was a question of fact for the
jury.
5. No authority to Charlick, the defendant's agent at San
Francisco, had been shown which made his repudiation of Cross' acts
equivalent to a repudiation by Law, the common principal of both;
but if specific authority to that effect had been given, it would
be sufficient.
Under these instructions the jury found a verdict in favor of
the plaintiff for $15,933 79, on which the court gave judgment, and
the defendant took this writ of error.
MR. JUSTICE GRIER.
The objection that this suit should have been brought in the
name of Cross, Hobson & company, instead of Alexander Cross has
no support either in law or the facts in evidence. The contract on
which the suit was brought was with Cross alone. Law had
established a line of steamers on the Pacific, to run from Panama
to San Francisco. It became necessary to supply them with coal at
Valparaiso,
Page 66 U. S. 537
and to have purchases of it made there in expectation of their
arrival round the cape and for supplies at San Francisco.
Cross being in New York in January, 1850, and about to go to
Valparaiso, was employed by Law to make purchases of coal for him
at Valparaiso. His letters of instruction are all directed to Cross
alone, and contain no intimation of any other party in the
transaction. Cross was a member of the mercantile firm of Cross,
Hobson & Co., doing business in Valparaiso. The same firm had a
house also in San Francisco. Through these houses much of the
correspondence necessary in the transaction of the business was
carried on. That Cross was a member of each of these firms was but
an accident in the case, and would not necessarily make them
parties to the contract more than if any other individual or firm
had been his agents; and even if Cross had agreed to make them
equal shares in the profits arising from the contract, they did not
thereby become parties to it. The firm had no contract with Law on
which they could sustain a suit or be liable to him. Much stress
was made in the argument of this case that the firm, in their
correspondence with Law, giving information of what had been done,
used the words "we" and "us." There was certainly no grammatical
impropriety in the use of these pronouns, but the inference that
the firm was not acting for Mr. Cross, and that Law had made some
contract with it which does not otherwise appear is certainly not a
necessary one either in law or in fact. Every letter of instruction
as to purchase of coal was sent by Law to Cross individually. His
letter of instruction also to the master of the
Antelope
directs a consignment of the vessel to Cross, and not to the firm.
The letters of credit were to Cross alone, on the faith of which he
alone could draw bills to make the necessary payments.
A congeries of instructions, so-called, amounting to the number
of twenty-eight, were requested. The court, without confusing the
jury with a special answer to each one of these propositions,
properly submitted the facts to the jury and gave them instructions
as to the law. A large number of
Page 66 U. S. 538
these points, which involve questions of law, were ruled in the
charge as requested by the counsel.
The case was argued here, in some measure, as if it had been an
appeal in admiralty or motion for a new trial.
To comment on all the objections attempted to be raised in the
case would be tedious and unprofitable. It will be sufficient to
notice the real questions in the case, and the instructions given
by the court. If these were correct, the court below were not bound
to answer specifically each question in the catechism nor this
Court to comment thereon.
I. As to the cargo of the
Duncan, it was objected that
there was no authority to the agent to make such purchase.
The defendant had, by his letter of May 28, 1850, instructed the
plaintiff as follows: "I want you to purchase me two cargoes of
coal afloat, and send it to San Francisco as soon as possible;
consign it to your house there for me," &c. This cargo was
purchased on its way to Valparaiso, with an option to refuse it if
it should not arrive in sixty day. The coal afterwards arrived, but
the master of the vessel refused to take it to San Francisco, and
another vessel was chartered to take it. There was some dispute as
to what was meant by the term "afloat," and testimony was given as
to its meaning among merchants.
The court submitted the question to the jury.
We can discover no error in this instruction.
II. As to the coal purchased at Coquimbo and afterwards sent to
San Francisco by the
Amelia, Law had instructed Cross to
buy 350 tons of coal at Valparaiso for the
Antelope, which
was expected to arrive at Valparaiso by the first of June, but she
did not arrive till 28th of August in consequence of delay in
starting and detention on the way. In July, Cross wrote to Law that
he had purchased the coal for the
Antelope not at
Valparaiso, but at Coquimbo, stating as a reason that coal was
scarce and difficult to procure, and he was fearful the vessel
might arrive and not find a supply, and Coquimbo was but a day's
sail further on the way, the coal cheaper, and a safer and easier
place to ship it. But when the
Antelope arrived
afterwards,
Page 66 U. S. 539
she was so much disabled as to required repairs, and being
delayed at Valparaiso for that purpose, the master preferred to
have other coal purchased at Valparaiso, which could be put on
board while his vessel was being repaired, and directed the coal at
Coquimbo to be sent to San Francisco.
The defendant objected that this purchase was not within his
instructions.
It presented a case where the agent, acting, as he supposed, for
the best interest of his distant principal under the circumstances,
had nevertheless gone beyond the letter of his instructions. But as
the coal was purchased for the principal, it belonged to him if he
chose to accept it. If the price had risen, and Cross had sold it,
Law might justly have claimed the profit, and when informed by his
agent of what he had done, if the principal did not choose to
affirm the act, it was his duty to give immediate information of
his repudiation. He cannot, by holding his peace and apparent
acquiescence, have the benefit of the contract if it should
afterwards turn out to be profitable and retain a right to
repudiate if otherwise.
The principal must therefore, when informed, reject within a
reasonable time, or be deemed to adopt by acquiescence. The rule is
said to be a
"stringent one upon the principal in such cases, where, with
full knowledge of the acts of the agent, he receives a benefit from
them, and fails to repudiate the acts."
See Hoyt v. Thompson, 19 N.Y. 218
Whether there was such acquiescence or not the judge left fairly
to the jury.
III. The letter of Hackley was part of the
res gestae,
and properly admitted. The court instructed the jury that Mr. Law
was bound by his advice or direction, because it was outside of his
authority. The defendant cannot complain of this instruction.
IV. On the arrival of this coal at San Francisco, the price of
coal had fallen, and it became the interest of Law to have the loss
thrown on Cross. Accordingly, Charlick, Law's agent to attend to
his steamboats on the Pacific, assumed the power of repudiating the
contract, and set up as a pretense that the coal was not good. As
he refused to receive it, the coal was
Page 66 U. S. 540
consequently sold for the benefit of whom it might concern, and
bid in by Charlick for a sum which paid the freight only, leaving
the price paid for the coal by Cross unpaid.
The court properly instructed the jury that the authority of
Charlick, as shown, was not such as to authorize him to repudiate
the purchase, leaving it to the jury to say from the evidence
whether the defendant had communicated to Charlick any specific
authority to reject the coal and also whether the coal was of
proper quality or not and what was the contract, or whether there
was any parole contract between Cross and Charlick.
There can be no error imputed to this instruction except that
the jury were left to presume a private instruction to Charlick of
which there was no evidence. But plaintiff in error cannot complain
of errors in his favor.
These are all the material points in the case that were properly
raised on the trial below, and it is not necessary to vindicate our
decision by a more minute examination of the facts. The court below
has given correct instructions as to the questions of law really
involved in the case, and properly refused to confuse the case by a
specific answer to each of the twenty-eight points. Those not
answered in the instructions we have noticed were either answered
affirmatively or were wholly irrelevant.
Judgment of the circuit court affirmed.
