Andrews v. Himrod

Attachment—Sales—Special Agent—Authority of—Change in Contract —Evidence—Damages. 1. A special agent having procured a purchaser for his principal's goods, on terms satisfactory to the latter, can not release the purchaser, or alter his contract in any material point. 2. In such case consent to a change in shipping directions is not enough to constitute an assent upon the part of the principal to a change in the contract. 3. In an action to recover commissions, alleged to have been earned by the plaintiffs as brokers in the sale of certain iron, this court holds that the trial court erred touching the assessment of damages, and that the judgment for the plaintiffs can not stand.

Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding. On February 25, 1887, Daliba, Hussey & Co., iron brokers, of Cleveland, Ohio, made a written contract with Andrews & Hitchcock, appellants, iron manufacturers of Youngstown, to the effect (so far as this controversy is concerned) that Daliba, Hussey & Co., as sales agents for mine owners, had agreed to sell to Andrews & Hitchcock certain ores during the season of 1887, and that Andrews & Hitchcock were to make all of said ore into Bessemer pig iron, and give Daliba, Hussey & Co. the exclusive sale thereof at a commission of twenty-five cents per ton, but the sales were to be made subject to the directions of Andrews & Hitchcock, as to price, terms and parties to whom sold, and that Daliba, Hussey & Co. should have sole charge of all collections and receipts from such sales. In July, 1887, the following correspondence by telegraph took place between Daliba, Hussey & Go. and Charles Himrod & Co., appellees, iron dealers and brokers of Chicago. “Chicago, July, 13, 1887. “ To Daliba, Hussey & Co., Cleveland : “ Will give twenty-two, Chicago, for three to five thousand Bessemer, if accepted to-day, and possibly to-morrow. “ Chas. Himrod & Co.” “ Cleveland, July 14, 1887. “ Chas. Himrod & Co., Chicago: “We make offer of twenty-two, twenty-five, cash, Chicago, three to five thousand tons Bessemer. Answer. “Daliba, Hussey & Go.” “Chicago, July 14, 1887. “ To Daliba, Hussey & Go.: “ Do you mean by telegram that you offer us three to five thousand tons Bessemer, twenty-two quarter, Chicago ? “ Chas. Himrod & Co.” “ Cleveland, July 14, 1887. “Chas. Himrod & Go.: “ Hitchcock declines to accept less than twenty-two twenty-five cash, Chicago, deliveiw to suityou. Bessemer is strength-, ening fast, and you will find this a good buy. Answer. “ Daliba, Hussey & Co.” “ Chicago, July 14, 1887. “ Daliba, Hussey & Co.: “ Offer on Bessemer accepted for five thousand tons. How fast can you ship? it is barely possible we could use some more at same price. How much can you ship and at what deliveries? “Chas. Himrod & Co.” “ Cleveland, July 15, 1887. “ Chas. Himrod & Co.: “ Do not care to sell more Bessemer at same price. Can deliver at rate thousand tons a month. “ Daliba, Hussey & Co.” On July 15,1887, Daliba, Hussey & Co. mailed to appellees and to appellants, sale memoranda of the 5,000 tons iron, and appellants entered the order on their boobs the next day as a sale to appellees and so notified Daliba, Hussey & Co. On July 15,1887, appellees notified the Union Steel Company of Chicago that they had purchased for the account of the Steel Company 5,000 tons Bessemer pig-iron at the price of $22.50 cash on the cars at Chicago. On July 14th appellees mailed this letter to the Cleveland firm: “ Chicago, July 14, 1887. “ Messrs. Daliba, Hussey & Co., Cleveland, Ohio : “ Gentlemen: We are in receipt of your telegram offering from 3,000 to 5,000 Bessemer iron, to be delivered after the coke strike ends, at $22.25 cash on board cars, Chicago. We have wired you in reply, accepting your offer for 5,000 tons and now hereby confirm the same. We wish you would mail us a letter stating the facts and giving the specifications, which we understand to be 10 per cent, phosphorous. * * * “ Very truly yours, “ Chas. Himrod & Co.” ■ Between July 14th and 19th, several letters passed between appellees and Daliba, Hussey & Correlating to the analysis of the iron, the effect of which was, that everything appellees suggested on the subject was conceded by Daliba, Hussey <fc Co., and appellees were informed by letter from them, of July 18th, that they could send the iron analyzing as appellees desired. On July 19th, appellees mailed this letter: “ Chicago, July 19, 1887. “ Daliba, Hussey & Co., Cleveland: “ Gentlemen: We are in receipt of yours of the. 18th. If satisfactory to you, we would like to have you make the con-i tract directly with the purchaser of this 5,000 tons of iron, collecting from them and remitting to ns the commission we make on it. The purchaser is the Union Steel Company. We will send you in duplicate contracts such as they want for the purchase of the iron. Enclosures. “ Chas. Himrod & Co. “You to collect $22.50, paying us 25c.” The inclosures referred to were duplicate contracts for the sale of the iron, between appellants, of the first part, and the Union Steel Company, of the second part. The contracts were both signed in the name of appellants by Daliba, Hussey & Co., as sales agents, and returned to appellees. At the same time Daliba, Hussey & Co. wrote appellees, saying they would bill and collect direct from the Union Steel Company. The reply of appellees was as follows: “ Chicago, July 22, 1887. “ Daliba, Hussey & Co., Cleveland: “ We are in receipt of yours of the 21st and return herewith one copy of the contract between you and the Union Steel Co. We believe this closes the whole matter up, and it is now out of our hands. One point we meant to state which we did not. We presume it is your understanding, lioxvever, that the contract is between you and the Union Steel Company, and we are not responsible for the payment of the iron. We simply collect our 25 cents per ton. We consider them absolutely good beyond all question, standing as high as any concern, probably, in the country, but we do not like to assume a large responsibility only when it is absolutely necessary. “ Enclosure. Chas. Himrod & Co.” In that letter one of the written contracts, executed by the Steel Company, was returned to and kept by the Cleveland firm. On July 23d, Daliba, Hussey & Co. wrote appellants: “ The 5,000 tons Bessemer iron sold to Himrod & Co., wants to be shipped to Union Steel Company, Chicago;” but no other information was given to appellants of any of the correspondence between appellees and Daliba, Hussey & Co., after appellees’ telegram of acceptance, dated July 14th. Appellants failed to deliver any part of the iron, and in consequence the Union Steel Company, about September 30, 1887, canceled the order. The price of the iron declined and the Steel Company appears to have suffered no damage. But appellees brought this suit to recover the 25 cents per ton which they would have received had the iron been delivered to the Steel Company. The trial was before the court without a jury and judgment being given for the plaintiffs, for $1,250, the defendants appealed.