Singer v. Church

48 App. D.C. 138, 1918 U.S. App. LEXIS 2364

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 27, 1918
• Docket: No. 3123
• Status: Published

Opinion

Mr. Chief Justice Smyth

delivered the opinion of the Court:

Plaintiffs say that Ergood was their broker in Washington. There is no evidence specifically defining his authority. He quoted prices on plaintiffs’ merchandise to defendant, solicited, received, and transmitted his order for the cabbage to the plaintiffs. The plaintiffs used him as a means of negotiating with the defendant and as an instrumentality for the transmission of messages from the defendant to them touching the matter. Since he was undoubtedly the plaintiffs’ agent to receive and transmit the order for the goods, we think he was also their agent to receive notice, if any was given, that the goods were not in accordance with the contract which he had made with Singer.

The supreme court of Michigan, speaking through Judge Cooley in Henkel v. Welsh, 41 Mich. 664, 666, 3 N. W. 171, used this language with respect to a similar case: “We think the circuit judge erred, also, in declining to charge that notice of the defects given to’ the agent or broker through whom the sale had been made to the plaintiff was notice to the plaintiff himself. The agency, presumptively at least, continued until the transaction was closed.” “A broker is but an agent.” Richardson v. Shaw, 209 U. S. 365, 377, 52 L. ed. 835, 841, 28 Sup. Ct. Rep. 512, 14 Ann. Cas. 981; Galigher v. Jones, 129 U. S. 193, 198, 32 L. ed. 658, 659, 9 Sup. Ct. Rep. 335. “Although he might represent both parties in making the memorandum of sale, he is to be held as representing, in other matters growing' out of the transaction, only the person originally employing him.” Schlesinger v. Texas & St. L. R. Co. 13 Mo. App. 471, 476. “The essential and basic feature underlying the relation of a broker to his employer is that of agency, and the principles of law applicable to principal and agent govern their respective rights and liabilities throughout.” 4 R. C. L. p. 247.

We have not been able to find any decision or text which, holds that a broker under circumstances similar to those revealed by the record is not the agent of his employer for the purpose of receiving notice of rejection of the goods sold. Cases cited by the appellees, to the effect that a broker may not alter a contract once confirmed by his principal without the consent of the latter, are not pertinent, for no such question arises in this case.

Defendant on cross-examination asked the witness Church, one of the plaintiffs, whether he had received any notice with respect to the shipment, and he said that Ergood had notified him that Singer had inspected and accepted the cabbage, but was not sure whether the notice was by letter or by wire. On redirect examination plaintiffs offered a letter from Ergood to them. The first sentence stated that after Singer had accepted the cabbage he refused to unload it because the" plaintiffs declined to make him an allowance on account of the alleged defects therein, and then followed this sentence: “We believe the whole truth of this transaction is.that the man has become suddenly embarrassed for money, as we understand that there are other cars on the track shipped to him that have not been unloaded.” Wé think this sentence had no proper relation to the question of notice, but expressed only an opinion of the writer, 1 lie agent of the plaintiffs, and was incompetent and prejudicial. Indeed there is much doubt in our minds as to whether any part of the letter was admissible. The record on tlie question is meager, not disclosing the exact language of the interrogatory in cross-examination which it is claimed justified its introduction. If the witness was asked only when he first received notice of the rejection,, the sentence should have been excluded.

The judgment is reversed, with costs, and a new trial awarded. Reversed.

Mr. Justice Bobb did not sit with the Court in the hearing and determination of this appeal.

A motion for a reargument was denied July 25, 1918.