Williams v. Woods

Eccleston, J.,

delivered the opinion of this court:

At the trial of this cause, the plaintiffs offered five prayers; the 2nd, 3rd and 5th, were granted without alteration, and the 1st and 4th were modified, by the court, and then granted. The defendant offered six prayers, ail of which were refused.

The judgment was rendered for the plaintiffs upon a verdict in their favor, and the defendant appealed.

One bill of exceptions contains all the evidence and all the prayers.

The plaintiffs examined A. A. White as a witness, who gave evidence tending to prove that White & Elder, as partners, were engaged in the business of merchandise brokers, and in the sale of merchandise on commission. That White as a member of said firm, and under authority from William Howell & Son, made the sale of coffee now in dispute. *247 That White then ordered R. W. Hall, the clerk of White & Elder, to make an entry of the sale in the blotter of the firm, as said firm usually did in their blotter. That the entry was accordingly made by Hall, in part, and afterwards completed by White; which entry is as follows:

«1853, Augt. 26. Win, Howell & Son. Woods, J3. & Co. G W C. W , 1244 bags Rio coffee. Paper to be satislactory to the sellers. 26 42 27 62 24 70 €0 58 72 85 38 39 43 68 101 30 95 34 26 60 52 36 56 60 1244 9

The said White, also testified that all of this entry is in the handwriting of Hall, except the figures “9f,” and the words “paper to be satisfactory to the sellers;” which excepted figures and words are in the handwriting of the witness, who further stated, on cross examination, that he stood at the table by Hall, while Hall made the entries.

The plaintiffs, in their first prayer, insist that “the said ■entry is a sufficient note or 'memorandum, in writing, of a contract, to bind the defendant in this action.” The correctness of this proposition is denied by the appellant, for the reason that, if the memorandum was signed.at all, it was signed, not by a broker, but by a broker’s clerk, who had no authority to do so, the latter acting as sub-agent, only, of the former, who was but an agent himself, in a transaction or business, which prohibited any delegation of his authority to a sub-agent. But the appellees consider the memorandum equally as valid and binding as if it had been prepared and signed by White himself; because it was written and signed, in the blotter or sales-book of White & Elder, by Hall, their *248 clerk, under the direction of White, he standing by the table Avhilst Hall made the entry, so far as it was made by him.

Apart from all other objections urged by the appellant to the appellees’ first prayer, supposing White & Elder had authority to make sale of the coflfee, and did make a sale thereof, and that the terms of said sale are correctly and sufficiently set forth in the entry or memorandum on the blotter of White & Elder, we propose, in the first place, to inquire whether the entry or memorandum is a valid and binding entry or memorandum of the sale, notwithstanding it is all in the handwriting of Hall, their clerk, except the figures “9f,” and the words, “paper to be satisfactory to the sellers,” which are in the handwriting of White? This inquiry presents the legal question, argued before us by counsel, whether a broker, having made a contract of sale, can authorise his clerk to wake and sign an entry or memorandum thereof, under his direction and in his presence, so as to bind the parties named in the contract ?

This question does not seem to have been conclusively settled. Whilst there are authorities which may be considered as favoring the doctrine that although a broker may, as an agent, make and sign a valid contract, for his principal, yet his agency is such that no portion thereof, under any circumstances, can be delegated to his clerk, there are others which speak of it as an open question, and others, again, seem to sustain the authority of the clerk to reduce the contract to writing, and sign the same, where he exercises no discretion, but merely acts ministerially or mechanically, under the direction and supervision of his employer, the broker. As authorities of the first class, reference is generally made to Blore vs. Sutton, 3 Merivale, 237, and Henderson vs. Barne wall, 1 Younge & Jervis, 387.

In Browne on Stat. of Frauds, sec. 369, after stating the authority of an auctioneer’s clerk to write down the name of the buyer, under his principal’s direction, the author says: “It has been decided that the rule did not embrace the clerk of a broker.” The decision referred to in this note is Henderson vs. Barnewall. And the writer adds: “But even this *249 seems now to be open to question.” As authority for saying which, he cites Townend vs. Drakeford, 1 Carr. Kino., 20.

In Story on Agency, sec. 13, the learned writer treats of the ‘‘Delegation oe Agency. ’’ He there states that a factor cannot ordinarily delegate his employment, as such, to another; after which he says: “The same rule applies to a broker; for he cannot delegate his authority to another to sign a contract in behalf of his principal, without the assent of the latter. The reason is plain; for, in each of these cases, there is an exclusive personal trust and confidence reposed in the particular party. And hence is derived the maxim of the common law: delegata potestas-non potest delegari.’’ This is but the enunciation of the general rule, that, ordinarily, a broker cannot, delegate his authority. For the principle just stated is, that a “factor cannot, ordinarily, delegate his employment,” and then it is said, “the same rule applies to a broker.” In addition to which, the reason for the rule as stated, is, because there is an exclusive personal trust and confidence reposed in the broker. Surely the reason of the rule cannot be applicable where the broker stands by whilst the clerk signs the contract, under his direction, leaving no act of discretion for the clerk to perform.

The propriety of permitting an agent to perform a mere ministerial or mechanical act, by a sub-agent or deputy, even where he could not delegate any portion of his authority, requiring the exercise of the least discretion, is well considered, in the opinion of the Supreme Court of New York, delivered by Mr. Justice Cowen, in Com. Bank of Lake Erie vs. Norton, 1 Hill, 504 . And there the cases of Blore vs. Sultan and Henderson vs. Barnewall are referred to. The court quote the language of Lord Ellenborough in Mason vs. Joseph, (1 Smith’s Rep., 406,) when speaking of an agent in relation to a mere ministerial act, he says: “Suppose, for instance, he had got the gout in his hands, and could not actually sign himself, he might have authorized another to sign for him.”

In Parsons’ Mercantile Law, 155, Note 7, many authori *250 ties are cited in relation to the power of an agent to appoint a sub-agent, and then it is said: “A broker cannot delegate his authority.” “Nor can a factor.”, After stating each of these propositions, the writer cites authorities, and then says: “But the power to perform a merely ministerial act, involving the exercise of no discretion, may be delegated.” Then he refers to Mason vs. Joseph, 1 Smith, 406 , per Lord Ellen-borough; Commercial Bank of Lake Erie vs. Norton, 1 Hill, 501 , and other cases.

In 1 American Lead. Cases, 589, (Ed. of 1857,) the principle is recognized, that a merely ministerial or mechanical act may be done by a sub-delegate. And the above mentioned case, in 1 Hill, is there referred to.

After mature reflection we are not prepared to sustain the objection to the appellees’ first prayer, urged by the appellant, upon the ground that the entry or memorandum is invalid, because it was chiefly prepared and signed by Hall, the clerk. The prayer submits to the jury the inquiry, whether the entry, so far as Hall participated therein, was made by him, under the order of White, and in his presence, also whether the other portion thereof was completed by White. And there is evidence tending to prove such facts. Believing that, under such circumstances, the clerk should not be considered as performing an act of delegated authority, requiring the exercise of any discretion, but merely a ministerial act, under the order and in the presence of White, as one of the firm of White & Elder, the appellant’s objection to the prayer is not, in our opinion, a valid objection.

The appellant says this prayer is erroneous, because the proviso therein requires the jury to find the “established custom and usage of merchants in the city of Baltimore,” without pointing to, or specifying any particular custom or usage, when the testimony speaks of usages which relate to several points in controversy, in regard to the disputed contract; and also because the proviso authorizes the jury, without the aid of the court, upon their own views of the custom and usage which they may find, and the other proof in the cause, in connection with the entry, to decide whether the entry, *251 “either expressly or according to the sense and signification of its language and figures,” did represent, “truly and fully the terms of, and parties to, the contract of sale.”

It is a well settled general rule that written instruments are to be construed by the court, alone, according to the meaning of the language therein employed, without the aid of parol proof to explain the meaning and intention of the parties thereto. If, however, in the case of a mercantile contract, “the instrument be not clear and unequivocal, evidence of the usage or course of trade at the place where the contract is to be carried into effect, is admissible to explain the meaning and remove the doubt.” 2 Kent's Com., 556, {5th Ed.)

A note or memorandum of a contract came before the Supreme Court, in the case of Salmon Falls Manufacturing Co. vs. Goddard, 14 How. Rep., 454. There, after stating what the Statute of Frauds requires to constitute a valid note or memorandum of a bargain, the court say: “This brief note of the contract, however, like all other mercantile contracts, is subject to explanation by reference to the usage and custom of the trade, with a view to get at the true meaning of the parties.” And again: “Although specific and express provisions will control the usage, and exclude any such explanation, yet, if the terms are technical, or equivocal on the face of the instrument, or made so by reference to extraneous circumstances, parol evidence of the usage and practice in the trade, is admissible to explain the meaning.” See, also, Browne on Statute of Frauds, sec. 380.

Whilst the above authorities show that in a mercantile transaction, when the terms of a written instrument are technical, or equivocal on its face, or are made so by reference to extraneous circumstances, parol evidence of the usage and practice in the trade, is admissible to explain their meaning, the principle applicable to such a case is, that the evidence of usage, and the surrounding circumstances, in explanation and illustration, is for the consideration of the jury, the province of the court being, to instruct them, conditionally or hypothetically, what should be the proper construction or interpretation of the written instrument, as they may find the evi *252 dence either to support or not to sustain the purpose for which it has been offered. This view, we think, is sustained by Eaton vs. Smith, 20 Pick., 156 , and Neilson vs. Harford, 8 Mees. & Welsby, 823. See, also, Morrell vs. Frith, 3 Mees, & Wels., 406.

In Eaton vs. Smith, C. J. Shaw, in delivering the opinion of the court, says: “When a new and unusual word is used in a contract, or when a word is used in a technical or pecu- - liar sense, as applicable to any trade or branch of business, or to any particular class of people, it is proper to receive evidence of usage, to explain and illustrate it, and that evidence is to be considered by the jury; and the province of the court will then be, to instruct the jury what will be the legal effect of the contract or instrument, as they shall find the meaning of the word, modified or explained by the usage.”

Speaking for the court, in Neilson vs. Harford, Baron Parke says-: “Then we come to the question itself, which depends on the proper construction to be put on the specification. It was contended that of this construction the jury were to judge. We are clearly of a different opinion. The construction of all written instruments belongs to the court alone, whose duty it is to construe all such instruments, as soon as the true meaning of the words in which they are couched, and the surrounding circumstances, if any, have been ascertained as facts by the jury; and it is the duty of the jury to take the construction from the court, either absolutely, if there be no words to be construed as words of art, or phrases used in commerce, and no surrounding circumstances to be ascertained; or conditionally, when those words or circumstances are necessarily referred to them. Unless this were so, there would be no certainty in the law; for a misconstruction by the court is the proper subject, by means of a bill of exceptions, of redress in a court of error; but a misconstruction by the jury cannot be set right, at all, effectually.”

Without any construction of the entry given by the court, either absolute or conditional, the proviso in the prayer as granted, instructed the jury to inquire and to determine, themselves, whether the entry represented truly and fully the *253 terms of, and parties to, the contract of sale. They were to ascertain whether the entry did this, “either expressly, or according to the sense and signification of its language and figures, under the established custom and usage of merchants, in the city of Baltimore, at the time — if they should find such custom and usage — and the other proof in the cause.” This was submitting to the jury, not merely to ascertain the meaning of technical, or equivocal terms, words and figures, or phrases used in trade, according to the usage of trade, but it authorized the jury to ascertain the terms of the verbal contract, also to ascertain by their own interpretation of the entry, whether it expressly represented truly and fully, the terms of the said verbal contract, and if not expressly, whether, according to their interpretation of the sense and signification of the language and figures of the entry as ascertained by the aid of such custom and usage as they might find, and the other proof in the cause, the entry corresponded with the contract as made and truly and fully represented the terms thereof. Tn other words, the prayer authorized the jury to construe the entry or memorandum, without any absolute or conditional construction thereof by the court. This was erroneous, and the prayer should not have been granted.

The plaintiffs’ second prayer begins by saying: “If the jury shall find, from the evidence, the facts in the plaintiffs’ first prayer,” and concludes with a proviso, which is considered erroneous, for the reasons assigned in objection to the proviso contained in the first prayer.

The third prayer is compounded of the first and second, and the reasons given for holding that they were improperly granted, are also applicable to the third.

The fourth prayer is compounded of the first and second, and the first proviso contained in this is obnoxious to the objections, for which we have considered the proviso in the first prayer erroneous. The proviso thereto, added by the court, is also considered erroneous, because it was calculated to mislead the jury.

The fifth prayer of the plaintiffs, we think, was properly *254 granted. The proposition contained therein is sustained by Glenn vs. Grover, 3 Md. Rep., 228 ; Barry vs. Hoffman, et al., 6 Md. Rep., 86 , and Williams vs. Banks, 11 Md. Rep., 232 .

Having examined the plaintiffs’ prayers, we will now consider those of the defendant.

The first asked an instruction to the jury that, if they should find the facts therein specified, then the entry on the blotter is not a sufficient note or memorandum of the bargain. The first ground of objection to the entry is the participation therein of Hall, the clerk. The views expressed on this subject, whilst considering the plaintiffs’ first prayer, are deemed sufficient to show that this is not a valid objection to the entry; and, therefore, the refusal to grant the prayer now before us is not erroneous, so far as relates to this question.

The entry is set forth in the prayer, which shows that no time for payment of the price of the coffee is stated therein. And for the purpose of presenting an objection to the entry, because it contains no specification of any credit or time of payment, the prayer submits the proposition that if the jury shall find a bargain, in relation to the coffee,.was made, “and that the terms of such bargain as made, were, that there should be a credit of six months, for payment of the price, and that the said price should be settled for by paper satisfactory to said firm of William Howell & Son, or else in cash at the usual discount,” that no part of the price was paid, and no part of the coffee was delivered, “then the said entry is not a sufficient note or memorandum of the said bargain to bind said firm.” The position here taken is, that if the jury should find the contract made was a sale upon six months’ credit, inasmuch as the entry makes no mention of any credit, the contract is not truly and correctly represented by the entry, and, therefore, it is not a sufficient note or memorandum of the contract to bind the firm of William Howell <fc Son, or the defendant, as surviving partner of said firm.

Admitting that by the express terms of the contract, as made, there was to be a credit of six months, and there is no credit mentioned in the entry, nevertheless, the *255 court committed no error in refusing to grant the instruction prayed for. The plaintiffs had offered uncontradicted evidence tending to prove that, by mercantile usage, the credit on a sale of coffee is always six months, where there is no stipulation to the contrary. The truth of that evidence the court were bound to assume, when considering whether the defendant’s prayer should be granted or not. Viewing the entry in connection with the conceded truth of such evidence, it could not be considered an insufficient note or memorandum, for want of a proper, or any specification of the length of credit. Being an entry for a sale of coffee, and no credit stated, it was, according to the proof of the usage, an entry of a sale with six months’ credit. At least it was proper that the court should have regarded such to have been the effect of the evidence, when deciding upon the prayer.

In Cole vs. Hebb, 7 G. & J., 26 , the county court had refused a prayer which had been offered at the instance of the defendant, who became the appellant. The Court of Appeals approved of this refusal, and held, that: “In granting an instruction at the request of the defendant, the court must assume the truth of all the facts of which the plaintiff had offered testimony, legally sufficient to warrant the jury in finding them, which are not inconsistent with the facts, the belief of which by the jury was made the groundwork of the prayer.”

In Wilson, Adm’r ad col. of Owens, vs. Smith, 10 Md. Rep., 75 , it is said by the court: “The prayer on the part of the defendant does not present all the facts, but only a part of them, studiously excluding all allusion to the evidence in regard to the state of the records of the register of wills, and of the declarations of Mrs. Owens and Lowe, that no letters of administration had been granted. Although it is the right of a party to segregate a portion of the testimony in a cause, and ask the opinion of the court upon it, ( 1 Gill, 127 ,) yet the court will not grant such instruction, if it be such as will likely mislead the jury; and we consider the direction asked on the part of the defendant of such a character.”

In McTavish vs. Carroll, 7 Md. Rep., 366 , the court says:

*256 “It is certainly true, that when the proof the defendant, if believed by the jury, would establish any proposition inconsistent with the theory of the plaintiff’s prayer, which is based upon his own evidence, such prayer cannot be given, because it must assume or admit the truth of all the defendant’s proof on the subject.”

The hypothesis of the defendant’s second prayer is, that if the jury should find the facts therein mentioned then the memorandum, which is 'described in that prayer as having been signed by White & Elder, and written by White and delivered to the plaintiffs, is not a sufficient note or memorandum of the bargain to bind the firm of William Howell &. Son, or the defendant. Without intending to decide whether there was or was not such proof as would have warranted the jury in finding the enumerated facts, we think there was evidence legally tending to prove them; and upon the supposition of their being found by the jury, the conclusion of the prayer was correct. If this memorandum was made and delivered under such circumstances- as are set forth in the prayer, then it could not be regarded as a note or memorandum of the contract, which could bind the firm, of which the defendant is the surviving partner. The prayer, therefore, should not have been refused. The ruling on this prayer is, of course, confined exclusively to the memorandum therein described.

The third prayer was properly refused. Supposing there may be conflicting evidence as to whether White & Elder-had authority to make an absolute sale of the coffee, not subject to the approval of the firm of William Howell &• Son; still there is evidence tending to prove such absolute authority, and whether they had it or not was a question to be decided by the jury, upon the proof. If within the scope of such authority, White, as one of the firm of White & Elder, did make an absolute sale, not subject to the approval of William Howell & Son, it is not material whether White was influenced by the supposed approbation of Murgiondo, the clerk, or not, or whether the sale was afterwardsobjected to by William Howell &• Son.

*257 The position taken in the fourth prayer is, that the memorandum, mentioned in the defendant’s second prayer, is not a sufficient note or memorandum of the alleged bargain, in case the jury should find, from the evidence, that the bargain was made on the terms, that the paper should be satisfactory to the seller. It will be seen that this memorandum does not mention whether the paper for the price of the coffee should be satisfactory to the seller or not. The grounds on which the prayer is based, are presented hypothetically to the consideration of the jury, and if found by them to be true, were, in our opinion, sufficient to justify the instruction asked. The facts set forth as the hypothesis of the second prayer of the defendant are first introduced; it is then made the duty of the jury to fmd, whether, a bargain was made at six months’ credit, the paper therefor to be satisfactory to the seller; whether, by the usage and custom of merchants, a sale of coffee on credit, without any stipulation as to the paper to be given therefor, means, that the paper of the purchaser is to be received for the price of the coffee, and that in such case the seller would not be entitled to demand paper of other persons, or to require any thing more than the mere paper of the purchasers; and, whether, by the usage and custom of merchants, a sale of coffee on credit, on the terms that the paper shall be made satisfactory to the seller, means, that the seller has an absolute and unqualified right to judge for himself, as to the satisfactoriness of the paper, and cannot be required to accept any paper, except such as the seller may actually agree to accept for the price.

The questions submitted to the jury, by the prayer, in regard to usage, are specifically and distinctly presented; the evidence in relation thereto is conflicting or inconsistent. In such a state of case a party has the right to ask the court to instruct the jury, what should be the legal effect of their finding that the facts which are made the groundwork of his prayer are true. When the evidence relied on to sustain the facts, which are the basis of a prayer, is in conflict, or inconsistent with other evidence, offered by the opposite party, in the cause, in relation to the same facts, the prayer should not *258 be refused, merely, because it does not mention or notice the opposing or conflicting evidence. Under the circumstances here presented, the defendant had the right “to segregate a portion of the testimony in the cause, and ask the opinion of the court upon it.”1 And, we do not think, his prayer, in doing so, was calculated to mislead the jury. The defendant had given evidence in support of the usage, or facts, which were made the basis, or hypothesis, of his prayer, which evidence was contradicted by, and inconsistent with evidence offered by the plaintiffs, in relation to the same facts, or usage in reference to the same subjects. The prayer, therefore, is not liable to objection, as the appellees’ counsel have supposed it to be, because it ignores, or omits to notice evidence going to show, that according to the usage of merchants in the city of Baltimore, in every sale of coffee on credit, the paper is to be satisfactory to the seller, in the absence of any stipulation to the contrary. In our opinion the prayer ought to have been granted.

The defendant’s fifth prayer was properly refused. The proof does not show that the coffee was to be delivered or paid- for, either by satisfactory paper or by cash, on any particular day, or at ai^ specified period of time. No part of the coffee was delivered, nor was there any offer to deliver it; on the contrary the plaintiffs received notice, from William Howell & Son, very promptly, after the latter were informed of the alleged bargain, that thejr did not intend to comply therewith. Under such circumstances, the plaintiffs were not bound to prove, at the trial, what this prayer assumes was necessary to entitle them to a verdict.

The doctrine set forth in the sixth prayer of the defendant is, that if the jury should find that William Howell & Son, on the 31st day of August 1853, expressly refused to ratify or comply with the alleged sale of coffee, and expressly refused to deliver the coffee, and the plaintiffs, on that day, had knowledge of such refusal, then the said refusal constituted a breach of the contract of sale, on the said 31st day of August; and if they should find that at the time of such breach, the plaintiffs had not paid any part of the price of the *259 coffee, and had not delivered, or tendered, notes satisfactory to William Howell & Son, for the price of the coffee, or any part thereof, then the measure of damages, in case the jury should find for the plaintiffs upon the issues joined in this case, is the difference, if any, between the price of a lot of coffee, of the same quantity and quality, at the time of such breach, and the price at which the same had been sold, and such interest thereon as the jury might think right; and if the jury should not find that the price had increased at the time of such breach, beyond the price at which the coffee is alleged to have been sold, then the jury, in case they should find for the plaintiffs, should find their verdict merely for nominal damages.

From a letter of the plaintiffs, dated the 1st of September 1853, it appears that on the preceding day, (the 31st of August,) they had knowledge of the peremptory refusal of the firm of William Howell & Son to comply with the alleged contract of sale.

In Mayne on Damages, 82, in the Law Library, when treating of “Actions for not delivering goods,” after commenting upon several cases, it is said: “In all tiiese cases there was a stated time fixed for the completion of the contract. Where there is no time fixed, damages will be calculated from the period at which the defendant refuses to perform it. Such a refusal leaves no further locus penitenticc to himself, and of course the plaintiff cannot treat the agreement as any longer subsisting.”

Believing this to be a correct statement of the law, in regard to damages in a case like the present, we deem it sufficient, without any thing further, to show that the theory of the defendant’s last prayer is correct, and¿ therefore, the refusal of it was erroneous.

It is not considered necessary to express any opinion upon what have been called, “verbal instructions given by the judge to the jury,” inasmuch as the record shows the court declared, “that all the instructions on the law, which it meant to give to the jury, were contained in the plaintiffs’ prayers, as granted and modified.

*260 (Decided June 28th, 1860.)

Upon the first, second, third and fourth of the appellees’ prayers, and upon the second, fourth and sixth of the appellant’s prayers, the rulings of (he court below are reversed. Upon the fifth of the appellees, and upon the first, third and fifth of the appellant, the rulings are affirmed.

Judgment reversed and procedendo awarded.