Opinion
03-27-1871
BERNARD v. MAURY & CO.
Little, for the appellant. Page & Maury, for the appellees.
Christian, J., absent.[a1]
N, living in the country, employs M, a broker in Richmond, to invest his moneys in Missouri bonds. In November, 1862, M invests at $112 50, and February, 1863, he invests at $125. In March, N sends a claim upon the Confederate government to M for collection, and tells of other funds which will be paid in to M in May, and directs him to invest in Missouri bonds. M collects the claim, and invests it at $160, and so writes to N. The 23d of May the funds spoken of by N is received by M, and then Missouri bonds have advanced seventy or eighty per cent. above the last investment, and are difficult to be gotten. On the 29th of June M writes to N, acknowledging the receipt of this fund, stating that Missouri bonds were then at 230 to 235, and asks whether he shall invest at the advanced price when to be had. M receives no answer to his inquiry, and therefore does not invest the money in his hands; the Missouri bonds continuing to advance in price. HELD: M was justified in waiting for further instructions, and is not liable to N for the loss.
This was an action on the case, instituted in April, 1864, in the Circuit court of the city of Richmond, and afterwards removed to the Circuit court of the county of Henrico, by A. N. Bernard against Robert H. Maury & Co., brokers, for failing to invest the funds of the plaintiff in their hands in Georgia, Alabama or Missouri bonds. The plaintiff lived in Fredericksburg until some time in 1863, when he removed to his farm in the county of Westmoreland. As early as November, 1862, the defendants appear to have acted as his brokers, and in that and the months of December, January and February, they purchased Missouri bonds for him at $112 and $112 50; and in May they purchased another of these bonds for him at $160.
In March, 1863, the plaintiff wrote to the defendants, authorizing them to collect a claim against the quartermaster's department of the Confederate government, and instructing them to invest the proceeds, and all other funds which should be deposited with them to his credit, in Missouri bonds. He also wrote to his sister, who then was staying at Ashland, near Richmond, requesting her to see the defendants, and instruct them to invest all his funds as speedily as practicable in Missouri bonds. And she went to Richmond, and saw one of the defendants, and read to him the letter. But she could not state at what time of the year that was. In May, the defendants wrote to the plaintiff, stating the investment of the money received from the quartermaster's department in a Missouri bond at $160. On 29th of June, they wrote again to him, acknowledging the deposit with them for the plaintiff of $9,129; stating that Missouri bonds had advanced greatly in price, and were then at 230 and 235; and asking whether or not they should invest when the bonds could be had at the advanced price; and saying that no Georgia or Alabama bonds had then been on the market. On the 23d of August, they again write to the plaintiff, stating the contents of their previous letters; and saying that no Missouri bonds were to be had; and they would then bring 356 to 375, and probably more; and again requesting him to advise them what they should do with the balance due him.
It further appeared that, between the time when the bond was purchased at 160, and the receipt by the defendants of the sum of $9,129, Missouri bonds had advanced seventy or eighty per cent.; they were very scarce, and not to be found in the open market or on the street, and that intervals from thirty to fifty days occurred when these bonds were not to be had at all.
It also appears that communication was difficult between Richmond and Westmoreland, and no reply was made by the plaintiff to the letters of the defendants asking for instructions.
The parties dispensed with a jury, and submitted the whole matter both of law and fact to the court; and the court, after hearing the evidence, gave judgment for the defendants. And thereupon the plaintiff excepted; and applied to this court for a supersedeas; which was awarded.
Little, for the appellant.
Page & Maury, for the appellees.
OPINION
ANDERSON, J.
This was an action brought by the plaintiff in error against the defendants in error, to recover damages for the neglect and failure of the defendants to invest the plaintiff's funds, in their hands during the late war between the States, in Georgia, Alabama and Missouri bonds, as the plaintiff alleges he instructed them to do.
The record shows that the defendants received a letter from the plaintiff, dated March 15th, 1863, inclosing a draft on the Confederate States for the sum of $1,858, which he requested the defendants to invest in a bond of the State of Missouri, and saying that, on or about the 1st of May following, there would be placed in their banking-house, to the credit of the plaintiff, some eight or nine thousand dollars in Confederate currency; which he requested them also to invest in Missouri bonds.
The defendants, it seems, had been the plaintiff's regular bankers and brokers, at least since November, 1862, and, under instructions from him, had invested his funds in Missouri bonds, in November, 1862, at a cost of $112 50; in December following at a little lower rate, $112; in January, 1863, at $115; and in February, at $125, the latter being the highest price paid for them prior to the date of plaintiff's letter of March 15th, 1863. The fund mentioned in that letter to come into the hands of the defendants about the 1st of May, to be invested for the plaintiff, was not received until the 23d of that month, when Missouri bonds had gone up from $125, their market value at the time the letter of instruction was written, to $230 or $235. This appears from the letter of defendants, addressed to the plaintiff, dated 29th of June, 1863, in which they ask for further instructions, informing the plaintiff that, in consequence of this great advance in the price of Missouri bonds, and there not being and never having been any Georgia or Alabama bonds offered in market, they had not invested. And the question now is, was it their duty, under the circumstances, to carry out the instructions of March 15th, as to the purchase of Missouri bonds, or to await further instructions? The instructions given by the plaintiff through his sister, though communicated to the defendants at a later date than the letter of March 15th, were probably given under the same state of facts in the mind of the plaintiff that existed at the date of the letter, and cannot change the relations between the parties. Nor is it satisfactorily shown by the record that Missouri bonds could at that time have been obtained, if the defendants had then been instructed to purchase them at the extraordinary price at which they had been sold. But, whether this be so or not, the court is of opinion that it was a case for continued instruction. And that the defendants, who, it seems, were acting in good faith, nothing to the contrary being even imputed to them, and who were acting in fact against their own interest, for what they believed to be for the benefit of their principal, were justified in asking for and awaiting further instructions.
With regard to instructions, there are two qualifications which are naturally and necessarily implied in every case of mercantile agency. And the same is applicable to an agency of this sort. The one is that they are applicable only to the ordinary course of things. And the agent will be justified in cases of unforeseen emergency, in deviating from them. Story on Agency, sec. 193. We think there had been such an extraordinary advance in the price of Missouri bonds since the instruction was given, which, if it did not constitute such an emergency, as at least to justify the defendants to call for further instructions, and to await an answer. They wrote time and again to the plaintiff, informing him of the change of circumstances, and asking for further instructions. If he did not receive their letters, it was not their fault. And it seems to the court that it would be too strict to hold them liable for the loss. The judgment of the Circuit court must therefore be affirmed.
JUDGMENT AFFIRMED.
[a1] He decided the case in the court below.