Opinion
October 25, 1907.
Warren McConihe, for the appellant.
Charles W. Coleman, for the respondents.
In the year 1904 a salesman of the plaintiffs, who are copartners, bargained with defendant for the purchase of a carload of hops of the growth of 1905, to be delivered after January 1, 1906, at twenty-seven cents per pound.
By mutual memoranda, signed by the plaintiffs and defendant, this bargain was confirmed. Upon the salesman's return to plaintiffs' place of business, he reported to the plaintiffs that the president of the defendant had been largely instrumental in enabling him to sell two other carloads of hops and that the plaintiffs owed some kind of compensation therefor. Thereupon one of the plaintiffs told the salesman that he himself was capable of looking after the matter and that he left it entirely to him to do what he thought best. On the salesman's next visit to the defendant's place of business, in adjustment and satisfaction of this obligation of plaintiffs to defendant, by memorandum in writing in plaintiffs' name signed by himself, he modified the contract for the purchase of the carload of hops, by providing that the purchase price should be at the market price at the time of delivery, not to exceed, however, twenty-seven cents per pound.
When the time of delivery arrived the price of hops was much below twenty-seven cents. The defendant offered to take them at the then market price, and the plaintiffs insisted that if delivered they should be at twenty-seven cents per pound. The defendant refused to accept them at that price, claiming that the contract had been properly modified, and the plaintiffs brought this action to recover the damages which they claim to have sustained.
The court refused to permit the defendant to go to the jury upon the question as to whether or not the salesman had authority to modify defendant's contract, or, if he had no authority, whether plaintiffs had ratified his act of modification, and submitted to them only the question as to how many pounds of hops a carload contained, instructing them, when that was ascertained, to find a verdict for plaintiffs for the difference between the market price proven and twenty-seven cents.
We think the court erred in refusing to submit to the jury the question of the salesman's authority to modify the contract; and if he had no such authority, whether plaintiffs did not ratify his act.
There was no dispute that the plaintiffs told the agent to settle the matter of the compensation of defendant for aiding in the sale of two carloads of hops in such manner as he saw fit. Instead of agreeing to pay a sum of money, or arbitrarily reducing the price of the carload of hops which defendant had bargained for, he agreed that the defendants need pay only the market price prevailing at the time they were to be delivered. Under the then condition of the hop market it might properly be said that this was a reasonable bargain and one of which the plaintiffs could not complain.
Indeed, on the proof as it stood upon the trial the defendant might well have asked for a direction of a verdict in its favor.
In addition to this undisputed authority given by the plaintiffs to the salesman to adjust the defendant's claim against them, the salesman testifies that he reported to the plaintiffs what he had done, at some period before any dispute arose; and the secretary of the defendant testified that in November, 1905, he called plaintiffs' attention to the fact that defendant's order for hops had been modified. On this latter occasion plaintiffs insisted upon settling other matters of difference between themselves and the defendant before taking up the modification to which their attention was then called.
If plaintiffs knew what their agent had done, and made no timely objection to it, the jury might find that they ratified his act, although it was originally unauthorized. The court erred in refusing to submit to the jury the questions requested by the defendant.
The judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.
PATTERSON, P.J., INGRAHAM, LAUGHLIN and CLARKE, JJ., concurred.
I concur with Mr. Justice HOUGHTON, and I am also of the opinion that if there was a breach of the contract by the defendant the measure of damages was the market price on the twenty-third day of January or the fifteenth of February. It was, therefore, error to refuse the testimony offered by the defendant as to the market value of the hops in January and February. On January twenty-third the defendant expressly demanded the delivery of the hops, which were then due under the original contract, and stated that the refusal to submit samples and prices at that time would be taken as a refusal on the plaintiffs' part to comply with the modified contract. This position was restated by the letter of February fifth, and the fifteenth of February was then fixed as the definite date for a breach of the contract on the part of one party or the other. The position of both parties had then been stated, the plaintiffs claiming that their rights were to be determined by the original contract of December 5, 1904, while the defendant claimed that the modified contract should control. If the jury should sustain the plaintiffs' contention, there was certainly evidence to base a finding that there had been a breach of the contract on the 15th of February, 1905.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.