Mr. Justice Baker
delivered the opinion of the Court:
We are entirely satisfied with the conclusion reached by the Appellate Court, and concur in and adopt the opinion filed in that court. In view, however, of the criticisms made upon that opinion in the additional brief and argument presented to this court, we will further- notice some of the questions of law involved in the case.
The right of Parker to recover under the common counts, for money paid and advanced, is strenuously denied. It is evident that if Parker had carried the contracts until their maturity, he would then have been obliged to deliver the corn called for by them, and that then there would have been an implied request from Perin to him to settle the deals, and an implied promise to pay him. It is claimed, however, that Parker being under no legal obligation to buy corn and perform the contracts before they matured, no request by Perin to him to pay out money can be implied in law, and consequently, there can be no implied promise by Perin to repay it, and an action for money paid will not lie.
Parker, as agent for Perin, and acting under his orders, sold the corn for Perin, and, under the rules of the board of trade and the custom of the Chicago market, he was personally bound to the purchasers on these contracts of sale. Parker and Perin were dealing with reference to such rules and such custom, with which they were both perfectly familiar. The rules of the board of trade provided, that on time contracts purchasers should have the right to require of sellers ten per cent margins, based upon the contract price of the property bought, and further security, from time to time, to the extent of any advance in the market value above said price. The price of corn had been rapidly advancing since the date of the sales. Parker either had deposited margins upon the contracts, or was liable to be called on for the ten per cent and the additional margins by the persons to whom he had sold the com. The evidence does not seem to disclose whether or not the purchasers had either received or called for margins. Even if they had not, yet there was an existing legal right in them to call on Parker for margins, and a legal liability upon the latter, within the next banking hour thereafter, to deposit the margins called for, and also, within that time, deposit with the secretary of the board, or the parties calling for such deposits, duplicate certificates of deposit, signed by the treasurer of the board or an authorized bank.
We must assume the facts to be, as found by the jury in the trial court, and by the Appellate Court, that defendant in error had made proper demands for margins, which had never been .waived, and that plaintiff in error had failed and refused to comply with these demands. After the failure of the princijial to put up margins when called for, and his absolute refusal so to do, and the return, unpaid and protested, of the draft drawn therefor, it became the duty of the commission merchant to '• use diligence in order to prevent increase of loss to himself and his principal. It is clear that the agent was not bound, himself, to bear the burden and the risk of the contracts made by the express order of his defaulting principal, through the whole of the options, without power to relieve himself from the personal liability imposed upon him by the contracts.
In view of the relation of principal and agent existing between the parties, the personal liability assumed by the agent upon the contracts made, the duty of the principal to indemnify his agent, and the rules of the board of trade, and the usage and custom of the market in which they were dealing, we must hold that when Perm ordered his agent to make the contracts, he not only impliedly agreed to furnish margins when demanded, but also impliedly agreed that if he failed and refused to put up margins when called for, then the agent should be authorized, without waiting for the maturity of the contracts, to buy corn for the purpose of filling such contracts. If there was such implied authority, then that authority, followed by the refusal of the principal to advance margins, was equivalent to a request to his agent to purchase immediately, or within a reasonable time", at the market price, the corn called for by the contracts, and necessarily implied a promise to pay the agent the difference in price between the corn sold and that purchased. This difference in price would properly be regarded as money paid by the agent for the use of the principal, and at his request.
This case is clearly distinguishable from Lightfoot v. Creed, 8 Taunt. 268. There, the parties were the vendor and vendee of stock, which was not transferred in conformity with the contract. The point ruled was, that the vendee had no implied authority from the vendor to purchase other stock to the same amount, and hold him for the difference as money paid to his use, and that the plaintiff should have declared specially on the contract. Here, the parties were principal and agent, and the dealings were with reference to the custom and usage of a particular market, and the employment and the subsequent conduct of the principal had the effect of a request to the agent to make the purchases when he did, with a promise to pay him the difference in prices. The claim here recovered by defendant in error was within the contemplation of the parties at the time of the employment to make the contracts of sale.
We have carefully examined the record in respect to the rulings of the court upon the instructions, and Will briefly state the result of such examination.
The court refused to give the third instruction asked by plaintiff in error, but the ground was substantially covered by the seventh instruction which was given.
The refusal of the court to give the sixth instruction was justified by the fact that the legal principle involved in it was given to the jury in the fourth and fifth instructions, and also by the further fact that it, by necessary implication, excluded from the consideration of the jury, in considering the reasonableness of the demands for margins made by defendant in error, Ms right to demand ten per cent margins, based upon the contract prices, and expressly limited his right to margins predicated upon the difference between contract price and market price.
The substance of the eleventh instruction submitted to the court had already been given in both the seventh and ninth instructions.
In the thirteenth instruction the court was asked to instruct the jury, as matter of law, that any statement by Parker in any letter or telegram to Perin, in evidence, that he, Parker, would draw a draft on Perin, was not a reasonable demand for margins, and was not a reasonable notice to Mm to put up margins. It was a question of fact, for the jury to determine, from such statements and their context, and from a consider-. ation of all the surrounding circumstances, whether or not the demands were reasonable. It was not error to refuse the instruction.
The fourteenth and seventeenth instructions were properly refused, and for the reason, that under the statute defendant. in error was entitled to receive interest on the moneys he had advanced for the use of plaintiff in error..
Complaint is also made of the fourth and fifth instructions for defendant in error..
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Mr. Justice Baker
delivered the opinion of the Court:
We are entirely satisfied with the conclusion reached by the Appellate Court, and concur in and adopt the opinion filed in that court. In view, however, of the criticisms made upon that opinion in the additional brief and argument presented to this court, we will further- notice some of the questions of law involved in the case.
The right of Parker to recover under the common counts, for money paid and advanced, is strenuously denied. It is evident that if Parker had carried the contracts until their maturity, he would then have been obliged to deliver the corn called for by them, and that then there would have been an implied request from Perin to him to settle the deals, and an implied promise to pay him. It is claimed, however, that Parker being under no legal obligation to buy corn and perform the contracts before they matured, no request by Perin to him to pay out money can be implied in law, and consequently, there can be no implied promise by Perin to repay it, and an action for money paid will not lie.
Parker, as agent for Perin, and acting under his orders, sold the corn for Perin, and, under the rules of the board of trade and the custom of the Chicago market, he was personally bound to the purchasers on these contracts of sale. Parker and Perin were dealing with reference to such rules and such custom, with which they were both perfectly familiar. The rules of the board of trade provided, that on time contracts purchasers should have the right to require of sellers ten per cent margins, based upon the contract price of the property bought, and further security, from time to time, to the extent of any advance in the market value above said price. The price of corn had been rapidly advancing since the date of the sales. Parker either had deposited margins upon the contracts, or was liable to be called on for the ten per cent and the additional margins by the persons to whom he had sold the com. The evidence does not seem to disclose whether or not the purchasers had either received or called for margins. Even if they had not, yet there was an existing legal right in them to call on Parker for margins, and a legal liability upon the latter, within the next banking hour thereafter, to deposit the margins called for, and also, within that time, deposit with the secretary of the board, or the parties calling for such deposits, duplicate certificates of deposit, signed by the treasurer of the board or an authorized bank.
We must assume the facts to be, as found by the jury in the trial court, and by the Appellate Court, that defendant in error had made proper demands for margins, which had never been .waived, and that plaintiff in error had failed and refused to comply with these demands. After the failure of the princijial to put up margins when called for, and his absolute refusal so to do, and the return, unpaid and protested, of the draft drawn therefor, it became the duty of the commission merchant to '• use diligence in order to prevent increase of loss to himself and his principal. It is clear that the agent was not bound, himself, to bear the burden and the risk of the contracts made by the express order of his defaulting principal, through the whole of the options, without power to relieve himself from the personal liability imposed upon him by the contracts.
In view of the relation of principal and agent existing between the parties, the personal liability assumed by the agent upon the contracts made, the duty of the principal to indemnify his agent, and the rules of the board of trade, and the usage and custom of the market in which they were dealing, we must hold that when Perm ordered his agent to make the contracts, he not only impliedly agreed to furnish margins when demanded, but also impliedly agreed that if he failed and refused to put up margins when called for, then the agent should be authorized, without waiting for the maturity of the contracts, to buy corn for the purpose of filling such contracts. If there was such implied authority, then that authority, followed by the refusal of the principal to advance margins, was equivalent to a request to his agent to purchase immediately, or within a reasonable time", at the market price, the corn called for by the contracts, and necessarily implied a promise to pay the agent the difference in price between the corn sold and that purchased. This difference in price would properly be regarded as money paid by the agent for the use of the principal, and at his request.
This case is clearly distinguishable from Lightfoot v. Creed, 8 Taunt. 268. There, the parties were the vendor and vendee of stock, which was not transferred in conformity with the contract. The point ruled was, that the vendee had no implied authority from the vendor to purchase other stock to the same amount, and hold him for the difference as money paid to his use, and that the plaintiff should have declared specially on the contract. Here, the parties were principal and agent, and the dealings were with reference to the custom and usage of a particular market, and the employment and the subsequent conduct of the principal had the effect of a request to the agent to make the purchases when he did, with a promise to pay him the difference in prices. The claim here recovered by defendant in error was within the contemplation of the parties at the time of the employment to make the contracts of sale.
We have carefully examined the record in respect to the rulings of the court upon the instructions, and Will briefly state the result of such examination.
The court refused to give the third instruction asked by plaintiff in error, but the ground was substantially covered by the seventh instruction which was given.
The refusal of the court to give the sixth instruction was justified by the fact that the legal principle involved in it was given to the jury in the fourth and fifth instructions, and also by the further fact that it, by necessary implication, excluded from the consideration of the jury, in considering the reasonableness of the demands for margins made by defendant in error, Ms right to demand ten per cent margins, based upon the contract prices, and expressly limited his right to margins predicated upon the difference between contract price and market price.
The substance of the eleventh instruction submitted to the court had already been given in both the seventh and ninth instructions.
In the thirteenth instruction the court was asked to instruct the jury, as matter of law, that any statement by Parker in any letter or telegram to Perin, in evidence, that he, Parker, would draw a draft on Perin, was not a reasonable demand for margins, and was not a reasonable notice to Mm to put up margins. It was a question of fact, for the jury to determine, from such statements and their context, and from a consider-. ation of all the surrounding circumstances, whether or not the demands were reasonable. It was not error to refuse the instruction.
The fourteenth and seventeenth instructions were properly refused, and for the reason, that under the statute defendant. in error was entitled to receive interest on the moneys he had advanced for the use of plaintiff in error..
Complaint is also made of the fourth and fifth instructions for defendant in error.. It is objected, that while there was evidence of waiver sufficient to go to the jury, yet said fourth instruction, in stating the hypothetical case of the plaintiff below, contained no qualification on the subject of waiver, and thereby took the question of waiver from the jury. The jury was not only very fully instructed on this question of waiver-in numerous other instructions of the court, but they, in their. answers to the special questions submitted to them, returned into court a special finding against plaintiff in error upon this question of waiver. The fact that they made this special finding, renders it absolutely certain that they were not misled by. the omission under consideration. The other objections urged to this fourth instruction are technical, and do not require particular notice.
The fifth instruction for defendant in error, in order to have been entirely accurate, should have contained the additional words, “and if the jury further believe, from the evidence, that Parker did sell the corn;” but the plain implication from the instruction, as given, was, that the jury must believe that Parker sold the corn, and the undisputed evidence was that he did sell it. It is manifest, therefore, that the jury were not, and could not have been, misled by the instruction.
The eighth instruction for plaintiff in error was modified by the court before it was given. No complaint is made of the action of the court in refusing to give it in the form in which it was asked. Objection, however, is urged to the modification made by the court. This modification was clearly inaccurate, and was probably made through inadvertence. The inaccuracy was, however, fully obviated by the fourth, seventh and ninth instructions given for plaintiff in error,—in fact, these latter instructions rendered the modification wholly immaterial, as they excluded from .the jury any right of recovery based upon the telegram of January 18 as a reasonable demand.
Our conclusion is, that there was no manifest error in the rulings of the trial court upon the instructions, and' that the jury was very fully and fairly instructed on behalf of plaintiff in error;
In our opinion the Appellate Court properly affirmed the judgment of the circuit comí... , .
Judgment affirmed.
Mr. Justice Bailey having heard this case in the Appellate Court, took no part in this decision.
Mr. Justice Shops: I do not concur in-this opinion, or conclusion reached.- . "" - "