Thayer v. C. Hoffman & Son

53 Kan. 723

• Court: Supreme Court of Kansas
• Decided: July 15, 1894
• Status: Published

Opinion

The opinion of the court was delivered by

Allen, J.:

, 2'encefídentl-fled by witness, on cross exam-dence. As the case-made does not affirmatively show that it contains all the evidence offered at the trial, we can consider only a part of the errors alleged. The first is that the court erred in permitting C. B. Hoffman, who was placed on the witness stand by the plaintiff to identify certain letters and telegrams which were offered in evidence, to identify a number of other letters on cross-examination, and in permitting such other letters to be read in evidence in connection with the cross-examination of the witness. It is only where the court has clearly abused its discretion that a judgment will be reversed on account of the order in which testimony is admitted. The letters identified and read in evidence on cross-examination were clearly competent, and, even if it be conceded that they properly constituted a part of the defense in the case, the judgment could hardly be reversed on account of their admission out of time. But in this case, it is not clear that the court would have abused its discretion if it had required the plaintiff to introduce, as his own testimony, the whole of the correspondence relating to the transaction. The contract between the parties under which the flour was shipped was made entirely by letters and telegrams, and it is difficult to see how the plaintiff could introduce a part of the writings and withhold the , , , , i balance, any better than he could offer a part 0f a contract contained in one connected written instrument. The plaintiff having failed to offer the whole of the correspondence, we think the court committed no error in allowing the defendant to offer the balance in connection with the cross-examination of the witness.

The plaintiff offered the depositions of four witnesses to show, as it is claimed, a custom among commission merchants in New Orleans to purchase goods from parties from whom they were receiving consignments to sell on commission. These depositions were excluded by the court. It is a sufficient answer to this claim that the depositions offered failed to show any established custom in that city which would vary in any manner the ordinary rule of law with reference to the dealings between a principal and his agent. About the most that can be claimed under the showing in the depositions is, that a commission merchant who is engaged in selling merchandise for a correspondent may also purchase merchandise outright from such correspondent. This proposition must be conceded without any proof of custom. In this particular case, the plaintiff seeks to show that the fact of his having ordered the flour without naming the purchasers was notice to the defendants that he bought it on his own account. We think the language of the telegram and the letter not such as to indicate to the defendants that the plaintiff was purchasing on his own account. The telegram simply uses the word “ book,” which is not shown to have any special meaning in the trade. The letter written by Thayer & Co. on the same day says:

“We placed seven cars to-day, and will inclose shipping directions. Could have sold more this evening, but thought it advisable to hold off, owing to advance in Chicago. We always sell on last price received, using judgment in case of advance.”

This language conveys to our minds the impression that the plaintiff had sold the flour as the defendants’ agent to other parties, rather than that he was buying on his own account. The letter of the defendants in response to the telegram cautions the plaintiff against selling to any but “gilt-edged” parties. If they understood that the plaintiff was buying on his own account, they certainly would have had no interest in the financial standing of anyone but himself. It is true that, in the subsequent correspondence, there is language used which might indicate that the defendants regarded this flour as sold to the plaintiff, but when the whole correspondence, so far as we have it before us, is construed together, we think the transaction must be held one of agency.

*• merchantable profits?11410 We think it fairly inferable from the record, if not conclusively shown, that the plaintiff received his regular commission of 10 cents a barrel on the sale of this very flour, and he contends that he is entitled to the commission and the difference between the price státed in his order and that at which the flour was sold also, on the ground that the defendants would realize just as much from a sale to himself as to anyone else. This contention is not sound in principle. The employer is entitled to the full benefit of the services of his agent, and the agent can never be permitted to take advantage of the confidential relation in which he stands towards his principal to speculate to his principal’s disadvantage. An agent may not order a consignment of his principal’s goods, using ambiguous terms, so that the loss may fall on the principal if the market declines, while if it advances he may claim a sale to himself and collect the profits of transaction. The general rule of law is, that profits resulting from the transactions of the agent belong to the principal. (Story, Ag., § 207.) It is unnecessary, however, to pursue this inquiry further, nor to discuss the distinction urged by counsel between a commission merchant and a broker.

We think the facts disclosed by the record do not warrant a recovery by the plaintiff. The case failing to show that all of the evidence is before us, all presumptions are in favor of the ruling of the district court on the demurrer to the evidence. The proposition urged by counsel, that if there is any evidence in support of the plaintiff’s claim the case must go to the jury, has little application where the whole transaction is in writing, as in this case. It is for the court to construe written instruments.. We find no substantial error in the record, and the judgment is affirmed.

All the Justices concurring.