Opinion
July Term, 1852
J.L. Curtenius, for appellant.
J.H. Reynolds, for respondent.
The plaintiff brought his action against the defendant in the supreme court to recover damages for a disobedience of instructions concerning the sale of two boat loads of flour shipped to the defendant in the months of June and July, 1847. The instructions were "to sell on arrival," and it was for the loss occasioned by a failure to comply with this direction that the appellant brought his action. There is no doubt that these instructions were received and understood by the defendant. In answer to a letter of the plaintiff dated August twentieth, 1847, alleging that he had desired the defendant "to sell the flour on arrival," and complaining that the instructions had not been followed, the defendant writes under date of the twenty-fifth of August as follows: "Sir, yours of the 20th is at hand. I represented your interest in the sale of six hundred and eight barrels of flour as well as I knew how. It would not sell on arrival. There was a panic in the market and only little lots for home consumption would sell at all. I am prepared to prove this fact to your satisfaction. It is my plan to obey orders if I break owners generally." If the defendant could not in fact sell the flour on its arrival, then he was not responsible for a disobedience of instructions; but we think the evidence shows, and especially that of the witness Barrett, that flour could be sold at any time in Albany at a reasonable deduction from the market price. There were sold daily through the season from five hundred to three thousand barrels at the usual market price in Albany. If the flour could have been sold even below the market price on its arrival, then all the authorities concur to show that it was the duty of the defendant te have sold it. It is laid down in Paley on Agency (ed. of 1822), p. 4, that the primary obligation of an agent whose authority is limited by instructions is to adhere faithfully to those instructions, for if he unnecessarily exceed his commission or risk his principal's effects without authority, he renders himself responsible for the consequence of his act. In v. Moore (3 Johns. Cas. 36), it is said that "if the defendants have as the agents or factors of the plaintiffs, through mistake or design, disobeyed their instructions, they are undoubtedly responsible." So in Parkist v. Alexander (1 John. Ch. 394), it is laid down that "if an agent departs from the instructions of his principal he does it at his peril." In Coursier v. Ritter (4 Wash. C.C.R. 549), it was held that it was the duty of an agent who was instructed to make sale of the article consigned for sale, " immediately on arrival, to sell immediately on arrival, no matter at what loss." See also to the same effect Bell v. Palmer (6 Cowen, 128), where an agent under similar instructions was held liable for refusing the first offer, although under the market price. And this is a reasonable doctrine; for if a loss occur by reason of an implicit obedience to the instructions of the owner such loss falls on him. Considering the lateness of the season and the probability of a rapid decline in prices we can well see why the plaintiff would desire an immediate sale of the flour and be willing to take the consequences of such deduction from the market price as might be necessary to effect a sale rather than incur the danger of delay.
The supreme court in refusing a new trial placed their decision upon the uncertain nature of the instructions. But it seems to us that a direction "to sell on arrival" is an explicit instruction, and the defendant seems to have so understood it in his letter of the twenty-fifth of August. It is substantially like the instruction in the cases in the sixth volume of Cowen, and in Washington's circuit court reports. But if there were any doubt on this question and the direction was open to two interpretations, it should have been submitted to the jury under proper instructions to say in what sense it was understood by the defendant. For these reasons we are of the opinion that a new trial should be granted.
All the judges except WATSON, who dissented, concurring.
Judgment reversed and a new trial ordered.