Foster v. Rockwell

4. manufacturer in the interior of Massachusetts gave an order to brokers in Boston: “ Send me twenty-five bags saltpetre at your earliest convenience.” The order could not be filled in Boston at that time, and the brokers bought the saltpetre in New York, directed it to be delivered there to a common carrier for transportation, consigned to themselves to a town near the factory, and advised their employer of what they had done, by a letter to which he made no reply. They had bought like merchandise for him before, on similar orders, but always in Boston, and had forwarded it to him from Boston. But the merchant from whom they bought this saltpetre had no knowledge of this course of dealing. He delivered it to the carrier, as he was directed; and it was lost in course of transportation. On being advised of the loss, the manufacturer denied the brokers’ authority to make the purchase in New York. Held, that the merchant might recover from the manufacturer the price of the saltpetre.

Contract for the price of twenty-five bags of nitrate of soda, as goods sold and delivered to the defendant; submitted to the judgment of the court on facts agreed substantially as follows, “ the court to draw all such inferences as a jury would be authorized to draw.” The plaintiffs were merchants.in Boston; the defendant a manufacturer of gunpowder in South wick. On October 19, 1868, the defendant wrote to the firm of Cushing, Porter & Cades, merchandise brokers in Boston, the following order: “ You will please send me twenty-five, bags nitrate of soda at your earliest convenience.” This firm had, from time to time, for seven or eight years previously, as brokers, and for a commission, bought for the defendant nitrate of soda ani ,cher materials for manufacturing gunpowder; on each occasion the order for the purchase was substantially like the one quoted; and every such purchase was made in Boston, and the goods were forwarded to the defendant from Boston by the Boston & Albany and Canal Railroads. At the time of this order of October 19, 1868, so small a quantity of nitrate of soda as twenty-five bags could not be bought in Boston. On October 20, Porter, one of the firm of brokers, applied to the plaintiffs, to make such a purchase of them, and was informed that they had no nitrate of soda in Boston, but had some in New York. He told them that he would take it in New York, at the price sued for, and directed them to mark the bags T, and ship them from New York by propeller to New Haven, to be forwarded thence to Westfield, and there to be delivered to the order of his firm ; and he wrote a letter to the defendant on the same day, which was mailed to the defendant the next day, as follows: “ We have yours of the 19th. Nitrate here is very scarce and held at 5c. gold; and we should have to wait its arrival from New York, so we bought for you twenty-five bags at 4|c. gold, bag, &e., 35c. currency in New York, to be shipped vid New Haven, marked T, and consigned to us, the carting and expense from New York not to be any more than from Boston. The carting here is 12c., and, as you know the freight to Westfield from here, you can easily tell whether it is cheaper or dearer than from New York. If it is any more from New York, you will deduct the difference when you remit.” To this letter the defendant made no reply. The plaintiffs directed their servant in New York to mark and ship the merchandise as directed by Porter, and it was marked “ T, Westfield, Mass.,” and shipped on board of the propeller Northampton, bound from New York for New Haven on October 22, and the plaintiffs’ servant took from the clerk of the propeller a receipt for it as deliverable to Cushing, Porter & Cades. This receipt he forwarded to the plaintiffs in Boston, who gave it to Cushing, Porter Sc Cades, but they did not send it to the defendant. The propeller Northampton, with her cargo, including this merchandise, was sunk, by a collision, in Long Island Sound, on the night of October 22-23, on her passage to New Haven, and the merchandise was lost. On October 26, Cushing, Porter Sc Cades wrote to the defendant, stating that from the bill of lading in the hands of these plaintiffs they had “ reason to think that the nitrate of soda bought of them for you was on board the propeller Northampton, which has sunk in Long Island Sound, and hope you took the precaution to have it insured ; ” and on October 27 they mailed to him the plaintiffs’ bill against him for the price of the merchandise. On October 29 the defendant replied, acknowledging the receipt of their letter of the 26th, quoting its language, and adding : “ I am surprised that you should have bought nitrate for me in New York without instructions to do so, and I do not see how you could expect me to insure your property without requesting me to do so.” Cushing, Porter & Cades answered on October 31, expressing surprise at the contents of the defendant’s letter, and stating: “ You have several times told us that you would at any time as lief take nitrate in New York as in Boston, one eighth less in New York, as the expense was about the same, and your instructions to buy did not say buy in Boston, and as we were acting for you we wanted to buy as cheap as possible, and supposed we were doing the right thing for you in saving you one eighth by taking in New York, and expenses to be no more. We gave you immediate notice, and of our action, which you received some days before the nitrate could be shipped, and we had no doubt you would provide for insurance. To accommodate the seller, we had it consigned to us, as it had to be consigned to somebody and we did not wish parties in New York to know to whom it was going.” On December 26 they wrote to the defendant again, giving him the address in New Haven of an agent of the steamship company which owned the pro» peller, and adding: “We have a letter from this agent, that they are settling the bills against the company by giving their notes at one year from January 1. We have sent him duplicate of your invoice and informed him that the nitrate was yours. If you choose to settle on the terms proposed, you can write to him in regard to it.” Neither party to the transaction ever mad® any claim on the steamship company; and-the merchandise was not insured by any one. It was further agreed, if testimony of the facts would be competent, that, at the time of making the purcnase from the plaintiffs, Cushing, Porter & Cades made an entry of the transaction on their own books as a purchase made for the defendant; and that the plaintiffs also charged the merchandise to the defendant on their books.