Appellant's petition substantially states that as brokers they bought of appellees 1500 barrels of sugar to fill orders which they then had for the same at 4 30/100 cents per pound; that appellants after contracting with appellees for the sugar, sold the same to other parties; that 500 barrels of the sugar were delivered *Page 635 to appellants under their contract of purchase, but that appellees refused to deliver the remaining 1000 barrels contracted for, and for this reason the appellants were required to go into the market and purchase a like quantity of sugar for the purpose of fulfilling the contracts they had so made with other parties; that there had been a rise in the market in the quality of sugar they contracted to purchase from appellees, which difference in price they were required to pay in the purchase of sugar to be delivered to their customers. The petition states what this amount is and it is sued for by the appellants as one of the items it is claimed that they were entitled to recover.
In addition the appellants also sued to recover ten cents per barrel as brokerage commissions, which they claimed they were entitled to. Also the sum of $44.37, loss sustained on that part of the sugar delivered on account of a difference in the quality of the sugar so delivered; and also sought to recover $7 as an item of car demurrage, arising from the negligence of appellees in not having the numbers of the cars correctly stated in the bill of lading.
After the evidence was all in the trial court directed a verdict in favor of appellees, evidently upon the theory that it was shown that the appellants at the time of their pretended purchase were acting as the brokers of the appellees, Barkley Company, and, such being the case, they could not purchase for themselves.
The rule is well settled in this State that if there is evidence, although slight, which has a tendency to establish an issue, it is the duty of the trial court to submit it to the consideration of the jury. Citizens Ry. Co. v. Griffin, decided March 18, 1908. The courts of this State have gone so far in this direction as to establish the nonsensical and illogical rule that the issue should be submitted, although the trial court after verdict should properly conclude that the evidence upon which it was based was not sufficient to justify the verdict of the jury, and for that reason should grant a new trial. (Fitzgerald v. Hort, 17 S.W. 369.)
Considering the evidence in the light of this rule we are not prepared to approve of the disposition made of the case by the peremptory instruction of the trial court. It is not always the case that a broker may not purchase for himself. If it is apparent that in making the purchase his object is to acquire title for himself, and the seller contracts with him with a knowledge of this fact; or the facts connected with his purchase are of such a character from which notice could be implied that he was dealing with the broker as purchaser, and not as his broker, we see no reason, in such a case, for the application of the rule that an agent will not be permitted, to his own advantage, to deal with the property of his principal. There is some evidence favorable to this theory of appellant of sufficient force to entitle this question to be submitted to the jury.
The pleadings of the plaintiffs present two inconsistent claims, that is so far as relate to the items of damages, one of which must fall. The item of damages arising from the breach of contract or failure to deliver the sugar is predicated upon the theory that the plaintiffs purchased the sugar on their own account and not as *Page 636 brokers for appellees. They also claim $150 as commissions, which must be predicated upon the theory that they are entitled to recover this sum as brokerage fees when acting for appellees. If they purchased for themselves, of course they are not entitled to the commission claimed. If they did not purchase for themselves but were merely acting as brokers for the appellees in the sale of sugar to other parties, then they would be entitled to the commission. These items are based upon two inconsistent theories, and the establishment of either one by the evidence would destroy the right to recover under the other.
Appellants on pages four, five and six of their brief undertake to enumerate the different grounds upon which they would be entitled to recover, provided the trial court had submitted the issues of fact to the jury. What we have said substantially disposes of appellant's first, second and third contentions as there stated. The fourth, fifth, sixth and seventh grounds may be disposed of with the statement that, in our opinion, the plaintiffs' pleadings did not authorize the questions suggested to be passed upon by the jury. In the absence of a pleading raising these issues, it would be improper for us to undertake to discuss the rules of law relating thereto, suggested by the appellants in their briefs.
In disposing of the third assignment, we take occasion to say that if the plaintiffs should be entitled to recover, so much of the contents of the telegrams and letters set out in this assignment of error as relate to the item of demurrage would be admissible, provided it is shown that the appellees were guilty of actionable negligence in not having the numbers of the cars properly inserted in the bill of lading, and that therefrom plaintiffs have sustained damage by incurring expenses and loss on account of such negligence.
The fourth assignment complains of the action of the trial court in refusing to admit the telegram of January 1, 1907, from the appellants to appellees, and a letter of the same date from appellants to appellees. This telegram and letter, it seems, were sent after the time the evidence tends to show the contract was terminated by the supposed breach of the appellees in refusing and failing to deliver the sugar. Furthermore, they should be considered as the statement and declaration of the parties in whose favor they are sought to be introduced. Evidence can not be made in this way.
We are inclined to the opinion that if on another trial there should be an issue as to the quality of the sugar delivered to witness Woldert, he should be permitted to testify as claimed in appellants' fifth, sixth and seventh assignments of error.
For the error pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded. *Page 637