Vigers v. Kilshaw , 13 La. 438 ( 1839 )

Eustis, J.,

delivered the opinion of the court.

This is an action of a principal against his1 agent, for exceeding his instructions.

Vigers, the plaintiff, trading under the name ofVigers & Company, in New-Orleans, appointed the defendant' his agent during his temporary absence in Europe. The powers given were general, and extended to every necessary act required to be done in the course of the plaintiff’s business. He left with the defendant particular instructions, however, and, among other directions, authorized the defendant, if choice parcels of tobacco should decline to a certain rate, to ship three hundred hogsheads to London, one half to be on account of a London house, and the other on account of the plaintiff. The defendant shipped the three hundred hogsheads to London, but also shipped ninety-nine hogsheads of tobacco to New-York. On this latter shipment there was a loss, which forms the subject of the present suit. The plaintiff having paid the amount, had a verdict for three thousand four hundred and three dollars and sixty-six cents. From the judgment on the verdict the defendant has appealed.

From an examination of the instructions of the plaintiff! we find no authority to make the shipment of tobacco to New-York, nor any thing from which such an authority can be implied. He authorizes certain operations in cotton to be undertaken, but those in tobacco were limited to the London market; none others are authorized, or even alluded to; and, from the particular manner in which the instructions are drawn up, we must conclude that all shipments other than those authorized were excluded. It might well happen that, in purchases of tobacco for the London market, a purchaser might find it for his advantage, in order to secure tobacco of a quality suitable for that market, to take other hogsheads of an inferior quality, as the article is sold in lots, not assorted according to the standard which exists there. The plaintiff was undoubtedly aware of this fact, and must be supposed to have given his directions in relation to it. His agent, the defendant, he knew might have on hand a certain quantity of tobacco, but there is no evidence that he, the plaintiff, had any idea of trusting it to the chances of a distant market. Duggan, the broker who purchased the tobacco, says expressly, that “ had Mr. Kilshaw sold the ninety-nine hogsheads here, he does not think Vigers would have sustained any loss, as there was a great demand for tobacco.” Putting the case on the most favorable footing for the defendant, supposing that the ninety-nine hogsheads of tobacco were left in his hands from the purchases he was obliged to make to complete the three hundred hogsheads for the London market, we find neither necessity nor authority for shipping the former to New-York, for which market, the evidence shows conclusively, the quality of Ihe tobacco was not suited. It is urged in argument, in behalf of the defendant, that his agency was gratuitous, and that he acted in good faith. There is no evidence which shows that the defendant was not to receive a compensation for his agency. The plaintiff did not expect the defendant to charge him any commission on his interest in the London shipment, but that ^le defendant, would be satisfied with the commission of three and a half per cent, on the interest of the London _ . , , . , . . , house; but we have seen nothing in the evidence which fakes this case out of the operation of the contract of commission. We believe the defendant acted in good faith, but , , , , . ,. , . . • . also that he acted indiscreet!]', and without authority, m making the shipment to New-York.

Where an agent with general and special powers is instructed to purchase for his •principal three hundred hhds. of tobacco for the London market, and without additional authority he ships ninety-nine hhds. to New-York, on which a loss is sustained, he is liable therefor. agent "acts6 in good faith but indiscreetly, and exceeds his in-viifbeTrespon-ssibie to his pnn-cipal for the loss that results.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs,