Maxon v. Chaddock-Carney Sales Co. , 195 Mich. 249 ( 1917 )

Ostrander, J.

(after stating the facts). The novel contention of plaintiff is the reason for so minute a statement of the facts. While the terms “broker” and “brokerage” are used in the record and briefs, the testimony of both parties indicates that defendant was a factor, intrusted with the possession of the property to be sold, with power to sell it in its own name, etc. 9 C. J. pp. 510, 511.

Assuming that it was. defendant’s duty to sell f. o. b. Decatur for $1.25 a case or more, or not to sell at all, and that it violated the duty by selling elsewhere at $1.25 a case, and more, how was plaintiff injured, and how can his damages be computed? Clearly, he is not entitled to at once affirm and disaffirm a sale made elsewhere at $1.70 a case; the price received depending in part upon delivery in the foreign market instead of at Decatur. And if a car was sold f. o. b. at Decatur at $1.25 a case, and was, without the broker’s fault, rejected, or refused, by the buyer, and after expense had been made and paid, was sold at the same price, in the foreign market, why should the broker be charged with the extra expense? Plaintiff says to defendant:

“It was your duty to sell the celery for at least $1.25 a crate f. o. b. Decatur. If you could not do that, you were to notify me, and I then would have either trenched it or sold it myself. You violated this duty, and in consequence I have been injured.”

But what injury has he proved? He refuses to treat the breach of duty as a conversion of his prop-i erty and sue for its value, in which case he would be obliged to prove its value when converted. He treats all sales as made at Decatur at whatever price they were made.

To sustain the contention of plaintiff is not to discover and make good his loss, to award him compensation, but is rather to impose a penalty for breach of the contract. With respect to one car only, No. 141812, is it clear that it was sold f. o. b. at Decatur, and that plaintiff was charged a commission, or brokerage fee of the foreign broker, in which casé it would appear that the defendant deducted something from money belonging to plaintiff. In all other cases there are facts and circumstances to be considered affecting the question of the price received by defendant for the produce. If the jury had clearly found that the contract testified to by plaintiff was made, this sum plaintiff might recover in this action upon the announced theory of his case. But it is not clear that the jury found the contract to be the one stated by plaintiff. The jury, apparently, disallowed all brokerage fees.

It is obvious that, without considering any other of the questions which are presented (they are not likely to arise upon another trial), the judgment must be reversed, and new trial granted, with costs to appellant.

Kuhn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.