(dissenting). I agree with the majority of the court that the trial justice should have determined the controversy between Cohen & Company and Glass. I dissent from the holding that as between these parties the loss must be borne by Cohen & Company. It should be borne by Glass.
Cohen & Company sold 10,000 bushels of wheat on behalf of Glass. Glass would have been entitled to the profit, if any, and is required to bear the loss on this transaction unless Cohen & Company have absolved him from this obligation. I assume the correctness of the finding of the trial court that Cohen & Company failed to give notice of the sale to Sartorius & Smith. It is undisputed, however, that notice of the sale by Cohen & Company was given to Glass. Glass desired to be even with the market. At the moment he received this notice he was necessarily even with the market, whether Cohen & Company notified Sartorius & Smith or not. If Cohen & Company had properly notified Sartorius & Smith that the sale made by them was in effect the sale of the 10,000 bushels of wheat held by Sartorius & Smith for Glass, the two transactions were matched and Glass was neither long nor short of the market. If, as found below, they did not give the notice to Sartorius & Smith, Glass was still even with the market, for he was long 10,000 bushels with Sartorius & Smith and short 10,000 bushels with Cohen & Company. If he did nothing, he could neither make nor lose. When the time for delivery came, Cohen & Company would have demanded coverage from Glass and he would have again instructed them to cover with the. 10,000 bushels held for him by Sartorius & Smith. In this situation Glass interfered and caused his own loss. Being told by Sartorius & Smith that they had received no notice of sale from Cohen & Company, he made no inquiry whatever of Cohen & Company, though he had been advised that they had sold for his account. Taking all the risk himself, he arbitrarily ordered Sartorius & Smith to sell the 10,000 bushels held by them for him. The damage which he suffered thereby was not caused by the omission of Cohen & Company to notify Sartorius & Smith of their sale; it was caused by the independent act of Glass in ordering Sartorius & Smith to sell their 10,000 bushels, when he had already been told that Cohen & Company had sold 10,000 bushels for him. His second sale of 10,000 bushels of wheat, therefore, was made deliberately by him and the loss should fall on him.
*522For these reasons the judgment should be modified by declaring that Glass is hable to Cohen & Company for the amount of their loss upon the coverage of their sale of 10,000 bushels of wheat.
Finch, J., concurs.
Judgment modified as directed in opinion. Settle order on notice. .