Bartol, C. J.,
delivered the opinion of the Court.
By agreement of counsel these cases were tried in the Court below before the same jury, and have been argued together in this Court; they involve the same questions and will be disposed of in one opinion.
The appellant Curtis was, in 1880, a dealer in grain living at Horseheads, N. Y., and the appellee was a commission merchant carrying on business in Baltimore, in the name of G. Frank Gibney & Co. The dealings- and transactions between the parties are shown by the letters, postal cards and telegrams passing between them, which were produced in evidence. These will be fully stated by the Reporter, and it is not necessary to set them out at length in this opinion.
When the correspondence began, the parties were strangers to each other. The appellant had consigned to [149]*149John Boyd, a malster, in Baltimore, four car loads of harley for sale, which Boyd proposed to hand over to the appellee to be disposed of by him. On the 30th of October 1880, the latter sent to the appellant the letter of that date. On the same day, the appellant telegraphs to the appellee:
“Please protect drafts, and place harley to best advantage,”—and November 2d again telegraphed:
“Please report as soon as possible, what has been done with the drafts.”
And November 4th informed appellee by letter that he had that day shipped to him a car load of barley, directed him to place same to best advantage, report early, will draw $400, (580 bushels in car.)
These several consignments were sold by the appellee, and accounts of sales rendered, viz., on the 10th of Nov. account of sales of harley that had been consigned to Boyd showed a balance in hands of appellee of $107.55. And on 18th Nov. account of sales of one car load consigned to appellee, showed balance in his hands arising from that sale, to credit of appellant, of $39.99.
In the mean time, viz., on Nov. 8th, the appellee telegraphed to appellant:
“Say lowest net to you twenty thousand. Delivering next thirty days, answer promptly.”
To which was sent on the same day, the following reply:
“Your dispatch just received. I don’t think I have more than about 10,000 bushels 4 rowed harley. Should want 87 net. Think I could furnish as much more two-rowed at 75 cents.”
L. L. Curtis.
On the following day, Nov. 9th, the appellee telegraphed to appellant:
“Have sold the ten thousand four-rowed to net you 87. See letter about "shipping.”
[150]*150The letter referred to is dated 10th Nov., and after reporting sales of the five car loads barley before received,—says, “sold you ten thousand to net you your price 81 cents, which we consider a good sale. We sold it by average sample, to be like last shipments. Now when you ship this barley, would like you to do as all our other customers do, say, draw five day drafts on us, we accept same and pay them when due, giving barley time to get here, and get up account, when draft becomes due. By so doing you will oblige us. You need not be in a great hurry about shipping, so you get it in this month, still, the sooner the better, as to have deal closed up. Please let us know if you have any more to offer. When we weigh up the one car, will send you check for the whole five cars. Awaiting your favors, we remain,”
“F. Gibney & Co.”
The last part of this letter evidently refers to the Jive car loads previously received by the appellee.
Then followed the telegrams, postal cards and letters dated respectively Nov. 12th, Nov. 15th, Nov. 11th, Nov. 18th.
On November 19th appellant shipped to appellee 3 cars of barley—stating in his letter the quantity, and that it amounted at 81 cents to $1414.24 net, after deducting therefrom $125.66 for freight—for this amount he drew a sight draft on appellee, asked him to close up the account at once, saying, “ I have no patience with such delay.” The draft was protested for non-acceptance. On the' same day the appellant drew on appellee at sight for $141.54,-being the balance in the hands of appellee due appellant for jiroceeds of sales of the 5 car loads of barley previously sold, as shown by the accounts of sales rendered by appellee; this draft was also returned protested for non-acceptance. On Nov. 22d the appellee wrote to appellant as follows: “Your favor 19th to hand, and fully [151]*151noted. We sent you Nov. 9th account sales Boyd’s four cars, and on Nov. 18th we sent you account sales your one car, showing a net balance of $141.54, which we have placed to the credit of your account. Tour s’t drafts with R. R. receipts attached, came to hand to day, and we refused to pay same, as you left no margin whatever. We will try and weigh barley, and telegraph you tomorrow what you may draw. Please hurry forward the balance of the contract, as our parties are pushing us.”
The price of barley rose rapidly in the market. No remittance was thereafter made to the appellant by the appellee, nor was any more barley sent by the former; on account, as he states in his subsequent letters, of the failure of the appellee to honor his drafts, or to remit to him the proceeds of his consignment, which, as he alleges, injured his credit and prevented him from “moving the grain.”
It appears from the proof, that on the 9th day of November, 1880, the appellee contracted to sell to Solomon Strauss 10,000 bushels of barley at 90 cents per bushel; this sale was made by the appellee in his own name, and we infer, upon a credit of four months, as Strauss settled for the same by giving his promissory notes dated respectively Nov. 28d, Dec. 3d, Dec. 7th, and Dec. 13th, each payable four months after date.
As the price of barley rapidly advanced, Strauss demanded of the appellee “to put up a margin upon the contract,” which was done by the latter giving to the former his promissory note for $600, payable on demand. In order to fulfil his contract with Strauss, the appellee bought barley in the market ata price averaging 10 and in his account rendered against the appellant charged him with the barley thus purchased, at the prices paid therefor, and after crediting the sum of $1496.46 being amount due for barley that had been received from the appellant, showed a balance due from the latter of $185.35, [152]*152and to recover this balance, the suit of the appellee was-instituted.
The second suit was brought by the appellant, claiming to recover the sum of $1496.46, the net proceeds of the barley received from him by the appellee.
At the trial below the appellee recovered a judgment in the case wherein he was plaintiff, which by agreement, necessarily resulted in a judgment against the appellant, in the suit instituted by him, and he has appealed in both cases.
The only questions presented on the appeals, arise upon the prayers of the appellant, which were rejected; no prayers were offered by the appellee.
A very interesting question, which has been argued at the bar, is, what was the relation between the parties in respect to the 10,000 bushels of barley referred to in the telegrams of Nov.
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Bartol, C. J.,
delivered the opinion of the Court.
By agreement of counsel these cases were tried in the Court below before the same jury, and have been argued together in this Court; they involve the same questions and will be disposed of in one opinion.
The appellant Curtis was, in 1880, a dealer in grain living at Horseheads, N. Y., and the appellee was a commission merchant carrying on business in Baltimore, in the name of G. Frank Gibney & Co. The dealings- and transactions between the parties are shown by the letters, postal cards and telegrams passing between them, which were produced in evidence. These will be fully stated by the Reporter, and it is not necessary to set them out at length in this opinion.
When the correspondence began, the parties were strangers to each other. The appellant had consigned to [149]*149John Boyd, a malster, in Baltimore, four car loads of harley for sale, which Boyd proposed to hand over to the appellee to be disposed of by him. On the 30th of October 1880, the latter sent to the appellant the letter of that date. On the same day, the appellant telegraphs to the appellee:
“Please protect drafts, and place harley to best advantage,”—and November 2d again telegraphed:
“Please report as soon as possible, what has been done with the drafts.”
And November 4th informed appellee by letter that he had that day shipped to him a car load of barley, directed him to place same to best advantage, report early, will draw $400, (580 bushels in car.)
These several consignments were sold by the appellee, and accounts of sales rendered, viz., on the 10th of Nov. account of sales of harley that had been consigned to Boyd showed a balance in hands of appellee of $107.55. And on 18th Nov. account of sales of one car load consigned to appellee, showed balance in his hands arising from that sale, to credit of appellant, of $39.99.
In the mean time, viz., on Nov. 8th, the appellee telegraphed to appellant:
“Say lowest net to you twenty thousand. Delivering next thirty days, answer promptly.”
To which was sent on the same day, the following reply:
“Your dispatch just received. I don’t think I have more than about 10,000 bushels 4 rowed harley. Should want 87 net. Think I could furnish as much more two-rowed at 75 cents.”
L. L. Curtis.
On the following day, Nov. 9th, the appellee telegraphed to appellant:
“Have sold the ten thousand four-rowed to net you 87. See letter about "shipping.”
[150]*150The letter referred to is dated 10th Nov., and after reporting sales of the five car loads barley before received,—says, “sold you ten thousand to net you your price 81 cents, which we consider a good sale. We sold it by average sample, to be like last shipments. Now when you ship this barley, would like you to do as all our other customers do, say, draw five day drafts on us, we accept same and pay them when due, giving barley time to get here, and get up account, when draft becomes due. By so doing you will oblige us. You need not be in a great hurry about shipping, so you get it in this month, still, the sooner the better, as to have deal closed up. Please let us know if you have any more to offer. When we weigh up the one car, will send you check for the whole five cars. Awaiting your favors, we remain,”
“F. Gibney & Co.”
The last part of this letter evidently refers to the Jive car loads previously received by the appellee.
Then followed the telegrams, postal cards and letters dated respectively Nov. 12th, Nov. 15th, Nov. 11th, Nov. 18th.
On November 19th appellant shipped to appellee 3 cars of barley—stating in his letter the quantity, and that it amounted at 81 cents to $1414.24 net, after deducting therefrom $125.66 for freight—for this amount he drew a sight draft on appellee, asked him to close up the account at once, saying, “ I have no patience with such delay.” The draft was protested for non-acceptance. On the' same day the appellant drew on appellee at sight for $141.54,-being the balance in the hands of appellee due appellant for jiroceeds of sales of the 5 car loads of barley previously sold, as shown by the accounts of sales rendered by appellee; this draft was also returned protested for non-acceptance. On Nov. 22d the appellee wrote to appellant as follows: “Your favor 19th to hand, and fully [151]*151noted. We sent you Nov. 9th account sales Boyd’s four cars, and on Nov. 18th we sent you account sales your one car, showing a net balance of $141.54, which we have placed to the credit of your account. Tour s’t drafts with R. R. receipts attached, came to hand to day, and we refused to pay same, as you left no margin whatever. We will try and weigh barley, and telegraph you tomorrow what you may draw. Please hurry forward the balance of the contract, as our parties are pushing us.”
The price of barley rose rapidly in the market. No remittance was thereafter made to the appellant by the appellee, nor was any more barley sent by the former; on account, as he states in his subsequent letters, of the failure of the appellee to honor his drafts, or to remit to him the proceeds of his consignment, which, as he alleges, injured his credit and prevented him from “moving the grain.”
It appears from the proof, that on the 9th day of November, 1880, the appellee contracted to sell to Solomon Strauss 10,000 bushels of barley at 90 cents per bushel; this sale was made by the appellee in his own name, and we infer, upon a credit of four months, as Strauss settled for the same by giving his promissory notes dated respectively Nov. 28d, Dec. 3d, Dec. 7th, and Dec. 13th, each payable four months after date.
As the price of barley rapidly advanced, Strauss demanded of the appellee “to put up a margin upon the contract,” which was done by the latter giving to the former his promissory note for $600, payable on demand. In order to fulfil his contract with Strauss, the appellee bought barley in the market ata price averaging 10 and in his account rendered against the appellant charged him with the barley thus purchased, at the prices paid therefor, and after crediting the sum of $1496.46 being amount due for barley that had been received from the appellant, showed a balance due from the latter of $185.35, [152]*152and to recover this balance, the suit of the appellee was-instituted.
The second suit was brought by the appellant, claiming to recover the sum of $1496.46, the net proceeds of the barley received from him by the appellee.
At the trial below the appellee recovered a judgment in the case wherein he was plaintiff, which by agreement, necessarily resulted in a judgment against the appellant, in the suit instituted by him, and he has appealed in both cases.
The only questions presented on the appeals, arise upon the prayers of the appellant, which were rejected; no prayers were offered by the appellee.
A very interesting question, which has been argued at the bar, is, what was the relation between the parties in respect to the 10,000 bushels of barley referred to in the telegrams of Nov. 8th? The appellee contends that they stood towards each other in the relation of principal and agent, and that the sale to Strauss was made by the appellee in the capacity of agent or factor, for and on account of the appellant; while the contention on the part of the latter is that the real relation between them in respect to that transaction was that of vendor and purchaser.
The solution of this question depends upon the true construction and effect of the written correspondence, which it is for the Court to interpret. This correspondence shows that the first transactions were simply between the appellant as principal, and the appellee as agent or factor. Five, car loads of barley were sold by the appellee in that capacity; four of them had been originally consigned to Boyd, and the fifth was consigned directly to the appellee, these were sold by the latter, for the best price he could obtain,, and after deducting the amounts paid for freight and other charges, and a commission for his services, the balance remained in his hands payable to the appellant. While these transactions were in progress the telegram of Nov. 8th, was [153]*153sent by the appellee to the appellant. As tbe former had been known to the latter only as a “Commission Merchant” or factor—who sold merchandise consigned to him, for, and on account of the consignor; the telegram referred to, must have been understood by the appellant, not as a proposal to purchase 20,000 bushels of barley, but as an inquiry whether the latter had that quantity for sale, and the net price, he would expect to receive for it; and the reply thereto sent by the appellant, which has been before stated, by no means authorized the appellee to sell 10,000 bushels of barley for and on account of the appellant. But on the following day, Nov 9th, the appellee telegraphed to appellant, “Have sold the ten thousand four-rowed to net you 87;” and referred to letter about shipping. This letter was dated 10th Nov. Its contents have been before stated. Now after the receipt of this letter and telegram, the appellant, on the 19th of November, sent three car loads of barley. This consignment can only be understood as a recognition or ratification by the appellant of the sale reported by the telegram and letter of Nov. 9th and 10th.
When this last consignment was made, the appellant drew on the appellee at sight for $1414.24, which, according to the railroad receipts, appeared to be the net amount of the barley at 87 cents, after deducting freight. But according to the terms of the letter about shipping, which he must be held to have assented to, he had no right to draw at sight, and he could not therefore properly complain that his draft was not paid. The more especially, as it turned out when the barley was weighed, that there was a deficiency in the quantity of 75 bushels. His other draft drawn at the same time, for $147.54, the cash balance in the hands of the appellee, due him on account of previous consignments, ought to have been accepted and paid by the appellee, and the latter had no legal excuse or justification for failing to pay the same. Thus far the correspondence between the parties would seem to indicate that [154]*154the appellant dealt with the appellee simply as a factor or agent, or as the latter styled himself, as “ a Commission Merchant.”
Whether the sale to Stranss can properly he considered as having heen made by the appellee as factor or agent only, for and on account of the appellant (and that the appellee so considered it we have no doubt) or whether the legal effect of the transaction was to make him a purchaser of the barley, and the sale to Strauss, a sale for himself and on his own account, is a question not of easy solution. The case of Ex parte White in re Nevill, 6 Chy. Appeals, 397, to which we have been referred by appellant’s counsel, and which was very well considered and ably decided, would seem to support the position of the appellant. Unquestionably the contract between the parties, as evidenced by the’ correspondence, was that the appellee bound himself to pay to the appellant 87 cents a bushel net for the barley, and to accept and pay the drafts of the latter at five days for the same, without regard to the sale of the article made by him, or the price or terms of payments by his purchaser. And it further appears that the sale to Strauss was for a different price, and payable at a different time, from that stipulated in his own contract with the appellant.
It was said by Mellish, L. J., in the case before cited: “ If the consignee be at liberty, according to the contract between him and his consignor, to sell at any price he likes, and receive payment at any time he likes, but is to be bound if he sells the goods, to pay the consignor for them at a fixed price, and a fixed time—in my opinion, whatever the parties may think, their relation is not that of principal and agent. The contract of sale which the alleged agent makes with his purchaser is not a contract made on account of his principal; for he is to pay a price which may be different, and at a time which may be different from those fixed by the contract. He is not guaranteeing the performance, by the persons to whom he [155]*155sells, of their contract with him, which is the proper business of a del credere agent; hut he is to undertake to pay a certain fixed price for the goods, at a certain fixed time, to his principal, wholly independent of what the contract may be with the persons to whom he sells; and my opinion is that, in point of law, the alleged agent in such case, is making on his own account, a contract of purchase with his alleged principal, and is again reselling.”
We consider these to be sound views, and if applied to the cases before us, they would he conclusive against the rights now claimed by the appellee; but it is not necessary for us to rest our decision on that ground. Assuming that the contract with Strauss was made by the appellee as agent or factor, and that the appellant dealt with him in that capacity only; it is very clear that he had no legal right to retain the money of the appellant, as a “margin” or security for the performance of the contract on the part of the appellant. Oelricks vs. Lurman, 23 Howard, 49; Oelricks and Lurman vs. Ford, 21 Md., 489. Such a stipulation is not found in the contract, and there is no evidence of any custom binding upon the appellant to justify it. It is equally clear that upon his failure to remit to the appellant the proceeds in his hands, arising from the sale of the barley, according to the terms of his contract with the appellant, the latter was not bound to make further consignments to him. Benjamin on Sales, secs. 677, 678, 765; Wether vs. Reynolds, 2 B. & Ad., 882; Bartholomew vs. Markwick, 15 C. B. N. S., 711, (109 Eng. C. L. R., 711;) Canal Co. vs. Gordon, 6 Wall., 561.
And consequently the appellant cannot be held liable for the loss incurred by the appellee, growing out of the sale to Strauss, and the judgment rendered in his favor in the case in which he was plaintiff below, is erroneous and ought to he reversed; there being no sufficient evidence to entitle him to recover upon the seventh count of the [156]*156declaration, as alleged in the appellant’s second prayer. By the agreement of counsel, the reversal of that judgment, entitles the appellant to a reversal of the judgment in the case in which he was plaintiff below. We think the general proposition contained in the appellant’s third prayer is right. It is, however, open to the verbal criticism made by the appellee. Instead of saying the plaintiff was entitled to recover “ the value of the barley,” &c., it would have been more correct to say the price thereof as agreed on by the parties; And so with regard to the claim of interest as a matter of right, upon the sum or balance of $141.54, from Nov. 17 1880. In the absence of proof of a contract by appellee to pay interest thereon, or proof of a custom entitling the appellant thereto—interest could only he allowed in the discretion of the jury. 7 H & J., 417; 37 Md., 443.
(Decided 14th July, 1882.)
Judgments reversed, and new trial ordered.