Bernard v. Torrance

5 G. & J. 383

• Court: Court of Appeals of Maryland
• Decided: June 15, 1833
• Status: Published

Opinion

Archer, J.

delivered the opinion of the court.

The offer to purchase the Gum Senegal, for the value of which this suit was brought, was made by James A. Buchanan, agent for the Warren Factory, on the 15th April, 1829, at a period of time when George Torrance, the defendant, was a partner of E. S. Buchanan, and joint owner with her of the Warren Factory. The defendant and E. S. Buchanan were unknown to the public as the proprietors of the Warren Factory, but its business was transacted by J. A. Buchanan, as the agent. On the 16th April, 1829, the defendant contracted to sell to E. S. Buchanan his interest in the establishment, and ceased from that day ,to have any interest in the conduct and management of the concern, and it was in fact at no time afterwards conducted on his account. On the 13th April, 1829, G. S. Oldfield, who was the agent of the plaintiff, residing in New York, offered to the agent of the Warren Factory to sell the Gum Senegal in question, at a price, which by letter of the 15th April, the agent, James A. Buchanan refused to accept,- and he in his turn made the offer above adverted to, by-which he proposed to take 10,000 lbs. at 18 cts. 4 months credit, and in the offer, requested it to be forwarded if accepted, and desired to be notified of the acceptance “by the return mail, that he might regulate his foreign orders.” This letter was received by G. S. Oldfield in New York, and handed over by him to his principal, the plaintiff, who immediately shipped 10,892 lbs. of gum to Oldfield, Trull fy Co. on the 18th April, and on the same day forwarded to them a letter apprising them of the sale to Buchanan, and requesting them to deliver it, and take his note for the same at 4 months. This letter was duly received by Oldfield, Trull Co. on the 20th April, 1829, and on the same day was communicated to James A. Buchanan, and on the arrival of the Gum Senegal in Baltimore, it was delivered by Oldfield, Trull fy Co. to James A. Buchanan, and by him accepted, and his note taken according to instructions, for the amount of the purchase money. This note, which had been discounted at bank, was not paid at maturity, but was taken up with funds derived from the firm of Oldfield, Bernard Co. of New York, for Bernard, who was then in Europe; and a new note was given by James A. Buchanan as agent, for the amount, which like the former was unpaid at maturity, and a third note was likewise given, which also was unpaid, and this suit was instituted by the plaintiff to recover the value of the gum. Torrance on the 11th May, 1829, had given notice of his retirement from the concern, in the Gazette, a paper printed in Baltimore, and the plaintiff, who at the commencement of these transactions had resided in New York, was absent on the continent of Europe, when the first note was taken up, and,, when the two other notes were given. It also appeared in evidence that the agency of Buchanan for the factory, was well known to G. S. Oldfield, the agent of the plaintiff in New York, through whom this transaction was negotiated.

If the terms of Buchanan’s letter of the 15th April, were substantially complied with by the plaintiff’s acceptance, we conceive that the defendant would be liable to the extent of ten thousand pounds of gum, notwithstanding his withdrawal from the concerns of the factory, on the 16th April, whether he be considered solely in the light of a principal in the transaction, or as a joint owner, or partner with E. S. Buchanan in the factory.

In the former case, the agency of James A, Buchanan, for some principals, was well known to the agent of the plaintiff, and that in this tranaction, he was not trading on his own- account. He was styled, “the agent for the Warren Factory,” and dealt as such, and credit was given not to the agent, but to the owners and proprietors of that establishment at that time. It is true, the owners were personally unknown, but credit was imparted to them from the character of the establishment, of which they were proprietors, and when discovered, their responsibility for the contracts of their accredited agent was unquestionable. Principals, when discovered, are ordinarily liable for the contracts of their agents. S

If therefore, this contract had been accepted by the plaintiff, at any time anterior to the defendant’s withdrawal from the concerns of the establishment, or at any time before the agency of J. A. Buchanan had been determined, there could have been no doubt entertained, as to the responsibility of the defendant./ But as Torrance ceased to have any concern in the factory the day after the offer, and before the contract was consummated, it is supposed, that he could not be made liable. Treating the letter of the plaintiff as an acceptance, the contract with him was certainly not consummated until the 18th April, 1829, for it is the offer on the one side, and acceptance on the other, which constituted the contract. \But we apprehend, that under the circumstances which this case presents, it would not be essential to inquire, what was the date of the contract to determine the liabilities of the parties. The material inquiry is, the date of the offer. A principal authorising an agent to make an offer, cannot withdraw to the prejudice of him to whom the offer is made. On the supposition that an acceptance of the offer has been made, a contrary doctrine would work the grossest injustice to the plaintiff. He accepts the offer of one, who is known to be the agent, and ships his gbods accordingly, before he could by any possibility know that the principal had put an end ^jtq the agency, or withdrawn from the management and concerns of the factory. The contract by which the defendant had agreed to dispose of his interest, was a secret transaction between him and E. 8. Buchanan, not known, as far as we are left to infer from the evidence, in Baltimore, the neighborhood of the factory, much less in New York, the residence of the plaintiff. The liability after the offer is made, must continue, if it be accepted, for it is the principal’s own offer, made it is true through his agent, but on that account, not the less his offer.

But to constitute it the contract^of the prineipal,jmd make the offer obligatory upon the defendant, it must have. beeiTacceptcd, according to the terms of the offer. James A. Buchanan could have entered into no new negotiations, or stipulation, after the withdrawal of his principal, which could bind the principal; nor could he possess any power after such withdrawal to dispense with any conditions oí the offer. Any new stipulation, or dispensation with offered stipulations, would make the agreement not the acceptance of the one offered, but a new agreement; which being made after the defendant’s withdrawal, would constitute a new contract, not binding on the defendant, but binding on the principal, of whom Buchanan had then become the agent, and it is therefore supposed that such has been the case here, and we arc called upon to say, that the contract in question is, in point of law, a new contract not obligatory upon the defendant.

The communications passing between the parties, which together constitute the contract, ought to receive a reasonable interpretation, and should be examined in that spirit of liberality, with which mercantile contracts ought always to be viewed by courts of justice.

With this principle in view, we will proceed to examine the facts relied upon, to show that there was not a consummation of the offer made, but that a new contract was formed.

We shall for the present, waive the inquiry, as to the period when the acceptance was made, and when notified, and the legal consequences growing out of these acts. These we shall examine in the close of this opinion.

It is supposed, that as the gum was not shipped to J. A. Buchanan at his risk, but instead thereof, was shipped and consigned to Oldfield, Trull Sf Co. and at the risk of the plaintiff, and that as 10,892 lbs. of gum were forwarded, instead of the quantity for which the offer was made, that these circumstances created a variation in the contract, or rather caused the receipt of the gum by J. A. Buchanan, from Oldfield, Trull if Co. to form a new contract, and that the existence of such new contract is conclusively evidenced by the acceptance by Buchanan, of 10,892 lbs. and giving his note for the entire quantity. In these views, however, we cannot concur. The great object of the agent of the factory, was to procure a given quantity of gum, and if this were attained, it could make no possible difference to him, that instead of being forwarded direct to him, it was consigned to another, with directions to deliver it to him. In either case, according to the intention of the parties, the was equally forwarded to him. Nor could the fact, that the gum was transmitted at the risk of the seller, instead of being at the risk of the purchaser, as had been originally proposed, give rise to the idea of a new contract. The plaintiff by shipping at his own risk, merely waived a privilege which he had insisted upon for his own benefit, and accepted the offer stripped of that which would have been a burthen to the purchaser. He certainly did not, nor could have meant thereby, to have given the purchaser the opportunity and privilege, in consequence of waiving what was a benefit to himself, of refusing the bargain, and repudiating the contract on the arrival of the gum. And there is just as little reason in saying, that because an additional quantity of gum was transmitted and accepted, that there was therefore a new contract entered into when the gum was delivered to J. A. Buchanan. For any quantity taken by Buchanan over and above the 10,000 lbs. there was a new contract, but the letter to Oldfield, Trull Co. declares the quantity sold to be 10,000 lbs., and Buchanan was not bound to have taken more, and the 10,000 lbs. is transmitted with the privilege to Buchanan of purchasing at the same price the additional quantity which was sent; and whether the additional quantity was, or was not taken by Buchanan, the contract was complete and obligatory, if in every other respect the offer was complied with, and the principal was bound, and for any surplus which was received and purchased, the then owners of the factory were answerable, and not the defendant. Nor do we conceive, that the delivery to Oldfield, Trull Co. of the promissory note, for one entire sum, for the purchase money, and their acceptance thereof, could in any manner change the character of the original contract, and make other persons his debtors than those with whom he had contracted. His contract was made for the gum with the former, not the then proprietors, and to make the note operate the effect of shifting the contract from the defendant to the then proprietors of the factory, it ought to be shown, that the plaintiff knew of the ownership of the factory having been changed, which is not only not shown, but it would appear that this fact was unknown even in the the neighborhood of the establishment.

If indeed, the plaintiff had at any time, agreed to discharge Torrance by accepting the responsibility of James A. Buchanan, or the proprietors of the factory at the time the second and third notes were renewed, the defendant could not in this case be answerable; but that is exclusively a question for the jury, and whether he did then agree or not, cannot have any bearing on the question, with whom the original contract was made. The acceptance of the first note, certainly furnishes no evidence of such consent to discharge the defendant, because as has just been stated, the plaintiff did not, nor could know, that any change in the ownership had taken place.

If Torrance and E. S. Buchanan be considered in the light of joint owners or partners, either dormant or otherwise, there exists the same responsibility. They were principals, and although unknown, the credit was given to them. It was not given to the agent. His character of agent was known. Nor was it given to the establishment, but to its owners, in virtue of their establishment, who when discovered, were answerable as has been before stated. The only difficulty which could exist, as to their responsibility as partners, must be placed on the ground, that no contract was entered into during the existence of the partnership. But we have seen that the vendor had a right to look to the principal, if the agent made an offer, although the agency should have been revoked, or the principal withdrew from the concern before the vendor accepted, and before he could possibly know of the course to be pursued by the principal, and if this be the correct doctrine, "he retiring partner would be bound in the same manner, as if he had continued in the firm until the consummation of the contract.

,. ¿Prom the preceding views it follows, that the county COTjrt'were in error in granting all, or any of the defendant’s prayers.

Before expressing an opinion upon the judgment of the court below, in their refusal to grant the prayers of the plaintiff, it will be necessary to examine one branch of the offer made by J. A. Buchanan to the plaintiff, which has not heretofore been adverted to, and upon the solution of f which, the event of this cause must mainly depend. We advert to that part of the offer, which called upon the plaintiff, if he accepted it. to apprise him of the fact byjhe return mail, that he might regulate his foreign orders. The construction ofthis clause, in a mercantile contract of This description can, we think, hardly admit of a doubt. Its importance to the defendant is manifested by the fact, that it constitutes a leading feature in the offer; ¡ and by the reason which is assigned for the request, and is just as obligatory as if it had constituted an express condition upon which the offer was made. That the defendant sustained no injury, if an answer had not been returned.as requested (¡son ¡ndai ned.

The defendant would have a right to say non in ha¡c Jbeil era veni; my offer is not to be considered as a binding offer, unless I get the notification of your acceptance by return mail, or by some other mode of conveyance equally as speedy. This we believe to be the true construction of , the offer, and whether or not, this part of the offer was complied with on the part of the plaintiff, is a question exclusively for the consideration of the jury; and if the offer in this respect was not complied with, Torrance having withdrawn before the 18th of April, the day of the acceptance of the offer, any dispensation with this important feature of the original proposition, would make what was subsequently done, a new contract, entered into after the agency had terminated, and of course, Torrance would not in such event be answerable. A

Applying the doctrines maintained in this opinion, to the various prayers offered by the plaintiff, it will follow, that the court were right in rejecting all the prayers offered by him.

The evidence of various merchants and traders, offered by the defendant, to prove that it was not generally known in Baltimore, or elsewhere, that the defendant was at any time interested in the factory, was, we think, properly admitted. For if it had been generally known in Baltimore, that Torrance was interested in the concern, a knowledge of that fact might have been presumed in the plaintiff; and if the plaintiff had knowledge of this interest, and no knowledge of the withdrawal, the defendant’s liability would continue, until he gave notice of his withdrawal. 1 Barn. & Adolp. 11. 20 Serg. & Lowb. 333.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.

Dorset, J. dissented.