Booth v. Bierce

By the Court, Johnson, J.

The referee has found, as a fact in the case, that before the plaintiff delivered the first load of rye to the defendants' agent, he informed such agent that his price for it was six shillings per bushel; that he had raised it for his own use and not to sell; but if it would be an accommodation to the defendants he would let them have it at that price; and he directed the agent to tell the defendants what the price was. He further finds that when the ( agent returned, the next day for the other load, the plaintiff asked him if he had told the defendants the price, and was informed by the agent that he had, and that they made no objection to the price, and thereupon another load was delivered. He also finds that the agent did not inform the defendants in regard to the price ; that the defendants had no knowledge of the price which the plaintiff asked ; and that the market price for rye was then only fifty cents per bushel.

It was clearly the duty of the defendants’ agent to inform them in respect to the price which the plaintiff asked for his grain, to the end that his principals might elect either to keep it at the price fixed by the plaintiff, or refuse to take it and return it. Instead of this, he not only omitted to inform his principals of the price, but fraudulently asserted to the plaintiff that he had informed them, and that they had assented to it, and by that means obtained another load. It is plain enough that no price was fixed by agreement between the plaintiff and the defendants’ agent. The plaintiff did not treat with the agent as having any authority to agree upon the price. He fixed his own price, leaving it optional with the defendants to take the grain at that price, or not take it at all, when they should be advised as to what the price was. It is equally clear that the defendants never agreed to pay the price asked, but took the grain and used it with the implied understanding that they were to pay what it was reasonably worth ; in other words the market price.

There was no meeting of minds between them, in point of fact, on the subject of price. Upon the question of sale, and purchase and the transfer of title, their minds did meet, hut not upon the price. Each party is disappointed in respect to price, through the neglect of duty, and the positive fraud of the defendants’ agent. The defendants took the grain and used it in ignorance of the price asked by the plaintiff, and the question is whether the latter is to recover the price at which he intended to sell, or the price at. which the defendants intended to purchase. There can be no doubt, I think, that in such a case the seller is entitled to recover his price for the article. Here was an apparent bargain and sale at the plaintiff’s price, which was entered into on his part in good faith, and which, he had a right to rely upon as a valid agreement on the part of the defendants. If either party must suffer, it should be the one who employed the agent by whom the fraud which occasioned the injury was practiced. (Dunlap’s Paley on Agency, 302, 303. The Bank of the United States v. Davis, 2 Hill, 451. North River Bank v. Aymar, 3 id. 268. Lobdell v. Baker, 1 Metc. 203. Dunning v. Roberts, 35 Barb. 463.) The case comes fairly within this well established rule, as to the whole quantity delivered; because the plaintiff, relying upon the fraudulent representation of the agent, not only delivered the second load, but omitted to reclaim the first load, which had been delivered by the defendants, on condition, only, that the .price asked should be agreed to by them.

[Monroe General Term, September 7, 1863.

The judgment must therefore be reversed, and a new trial ordered, with costs to abide the event.

E. Ear-win Smith, J. C. Smith and Johnson, Justices.]