(dissenting.) This is a suit originally before one of the justices of the peace in the Fort Smith district, Sebastian county, by the appellees, L. A. Freker & Co., grocery merchants of St. Louis, Mo., against J. Foster & Co., retail grocery merchants of Fort Smith, and J. P. Matthews & Co., brokers, also of Fort Smith, for the sum of $126.70, the price of a car load of potatoes. Judgment for the defendants, and the plaintiffs appealed to the circuit court, where a jury trial was had, resulting in a judgment for the defendants, J. Foster & Co., and against the defendants, J. P. Matthews & Co., who appealed to this coui-t.
J. P. Matthews & Co. were brokers, and on the 23d of February, 1897, sold for plaintiffs a car load of potatoes to J. Foster & Co. at a stipulated price, to be shipped to Fort Smith, Arkansas. This car was loaded on the track in St. Louis on the 24th and 25th of February, and went forward on the 25th. On-the morning of the 25th plaintiffs received another offer from J. Foster & Co., through J. P. Matthews & Co., to purchase another car load of potatoes at a stipulated price, to be shipped to Mena, Arkansas, which order was at once accepted by plaintiffs. This last order was made by letter, the first one was made by telegram. Immediately upon receiving the letter, on February 25th, plaintiffs accepted the order by telegram, thus: “Will accept Mena car. Will ship Saturday;” and they at once began loading that car, which was done on the 26th, and on the same day that car went out. In the letter J. P. Matthews & Co. had given direction to plaintiff to ship to R. S. Owen, Mena, Arkansas. After receiving the letter on the morning of the 25th, plaintiffs later on that morning received a telegraphic message from J. Foster & Co., asking if both ears were shipped, which was replied to by telegram at once, thus: “Fort Smith shipped today. Mena car tomorrow.” In the afternoon, February 25th, plaintiffs received another telegram from J. Foster & -Co. countermanding the order. (This appears to have been 'a telegram countermanding both orders.) Plaintiffs at once answered this telegram thus.- “J. Foster So Co., Fort Smith, Ark. Fort Smith car loaded and ticket signed. Mena order received by mail to-day, and are loading.” On the morning of February 26th, plaintiffs received a telegram from J. Foster So Co., saying they would not accept the Mena car under any circumstances. The car was then more than half loaded, and the balance of the potatoes ready to be taken to the ear.
The foregoing is taken from plaintiffs’ testimony. It will be observed that, on receiving J. Foster & Co.’s telegram countermanding both orders on the 25th, plaintiff continued to load the car for shipment, if indeed he had begun to do so at that time, and on receipt of telegram of J. Foster So Co., on 26th, refusing to take the Mena car under any circumstances, plaintiffs say that they had half loaded the car. The other car had been sent forward the day before, and was received and paid for at Fort Smith by J. Foster So Co., as stated above.
J. Foster in his testimony states that on the morning of the 26th he met J. P. Matthews, of the firm of J. P. Matthews So Co., in front of his place of business in Fort Smith, between 10 and 11 o’clock, and asked him from whom the potatoes were coming. Matthews informed him that they were from Freker So Co., of St. Louis, Mo. Foster then told Matthews that he would not buy potatoes from Freker under any circumstances, and that he would not take either car, and he immediately sent a telegram to Freker, telling him that he would not accept the potatoes under any circumstances.
The telegrams he received are set out in Freker’s deposition. He states that he (Foster) never in any manner authorized Matthews So Co. to send the telegrams “Rush both cars.” Continuing, the witness said: “The Fort Smith car came, and I received it, and paid for that. The Mena car was intended for R. S. Owens of Mena. I never received or accepted that car. I declined to receive the Mena ear, both because of too much delay in shipping same, and because my dealings with Freker had never been satisfactory. The cars of potatoes I bought from Freker through Matthews & Co. were to be shipped immediately, and when I learned on the 26th that they had not been shipped, for that and other reasons I declined to take the same. My customers were crowding me for potatoes, and I had to have them as soon as possible. I am not indebted to the plaintiff in any sum whatever.”
There was, therefore, testimony to justify the finding of the jury that J. Foster & Co. countermanded the order for the Mena car, and so notified both Freker & Co. and J. P. Matthews & Co. before the car was loaded for shipment and (from which the jury might find) before anything was done towards its shipment. And there was evidence to justify the jury in finding, as they did in effect, that, after the order was countermanded, J. P. Matthews & Co. sent the telegram to plaintiffs to “rush both cars,” and that upon this telegram the Mena ear was sent out.
It is manifest that Freker & Co. never were informed as to the reasons, or as to all the reasons, why J. Foster & Co. countermanded the order, and that they were evidently laboring under the impression that the complaint was on account of the delay only; for, having received the countermanding order from J. Foster & Co. on the morning of the 26th, Freker telegraphed to Matthews & Co. at once, as follows: “Mena car nearly loaded. Goes forward to-day. We are not at fault. Convince Foster,” It is equally evident that Foster’s principal reason for countermanding the orders — his desire not to deal with Freker — was withheld from Freker by Matthews & Co., or at least was never communicated to him by them.
There can be but one reasonable conclusion, I think, on this part of the case, .and that is that the Mena car was actually shipped on the order of J. P. Matthews & Co, to “rush both cars,” and that that order was unauthorized by J. Foster & Co. It is shown in evidence, without controversy, that J. P. Matthews & Co. wei’e the agents and brokers of Freker & Co. in selling these car loads of potatoes. It is rudimentary law that a broker must act in the utmost good faith towards his principal. In this instance the unauthorized act of the broker was the cause of plaintiff’s parting with the possession of the car load of potatoes, without the security in fact of the consignee being under any obligation to receive and pay for it, or at least the jury were justified in so finding.
When J. P. Matthews & Co. sent the telegram, “Rush both ears,” they also included a direction to Freker thus: “Send papers of Mena car to ourselves,” and accordingly Freker shipped the car out, the other having already gone; and the papers were sent to J. P. Matthews & Co., and were received at once by them. Subsequently plaintiffs drew on J. P. Matthews for the price of the car load of potatoes, $126.70, bjzt the draft was not paid. Matthews says in his testimony that the only object he had in directing the papers to be sent to them was to get the advantage of a lower rate of freight, which they had arranged for. Be this as it may, the car was not deliverable to any one at Mena, except on presentation of the bill of lading; that is to say, any one except J. P. Matthews & Co. or order.
This suit was for the contract price of the potatoes, as agreed upon in the sale by Freker & Co. to J. Foster & Co., through J. P. Matthews, and it is contended by defendants J. P. Matthews & Co., the appellants here, that, as they are only brokers, and not purchasers, they could only be held for damage to the property, if at all, and that no damages were proved or assessed. If that be the status of the case as made by the evidence, the circuit court was without jurisdiction to hear the ease on appeal from the justice of the peace, since the latter had no jurisdiction, the amount claimed being in excess of his jurisdiction to assess damages to personal property.
But the contention is that, having drawn the plaintiff into this controversy without his knowledge, and so manipulated matters as to let J. Foster & Co. out as purchasers, and in that view having directed plaintiffs to send “all papers” to them, and no delivery of the freight being possible except on presentation of these papers, therefore J. P. Matthews & Co. voluntarily assumed the place of the original purchasers, and are liable accordingly. This was the theory upon which the circuit court tried the case. J. P. Matthews & Co. claimed to have z’eturned the paper’s to Freker about noon on the 27th February. These consisted of invoice and bill of lading. We hear no more of them however. Why they should have sent them back on the 27th when they had directed them to be sent to them on the day before is something that needs explanation. If the theory of the circuit couit foe the correct one, its instructions were correct. The contention of appellee is that, by directing the invoice and bill of lading to be sent to themselves direct, and no one else except the holder of the bill of lading being entitled to claim and receive the car load of potatoes, the appellants voluntarily assumed the rights, and the corresponding responsibilities, of consignee and purchasers— stood in the place of the purchasers, so far as the plaintiff vendor was concerned.
There is sufficient evidence to show that the plaintiff was in no fault in this matter, and they so find in effect. It follows that either J. P. Matthews & Co. or J. Foster & Co. were responsible for this car load of potatoes, for that it was lost appears evident. The evidence, as we have seen, was sufficient to justify the jury in finding that J. P. Matthews had caused the shipment to be made after the order had been countermanded by J. Foster & Co. J. P. Matthews & Co. knew the facts. Freker & Co. did not know the facts, but acted on the directions of J. P. Matthews & Co. altogether, and in so doing lost their potatoes. On the morning of the 26th of February, J. Foster & Co. had countermanded the order by telegram direct to Freker & Co., and so informed J. P. Matthews & Co. Evidently plaintiffs were under the impression that Foster’s reason for countermanding the order was that the shipment was delayed too long, and with this idea plaintiffs at once telegraphed J. P. Matthews, as follows: “Mena car nearly loaded. Goes forward to-day. We are. not at fault [that is, We have not delayed.] Convince Foster.” In response to this telegram of plaintiffs, J. P. Matthews & Co., telegraphed him later in the day, “Rush both cars. Send papers of Mena car to ourselves.” On receipt of this, plaintiff was naturally led to believe that Matthews had satisfactorily explained matters to Foster, and that all was clear. Hence the message to “rush both ears” meant that they would be received if rushed as directed. This was complied with. Nothing more seems to have been heard from the matter by plaintiff, and on the 11th March he drew a draft for the price of the potatoes on J. P. Matthews & Co. This draft was returned to plaintiff indorsed, “Payment refused,” on the 18th or 19th March, for the indorsement bore date March 17th. Plaintiff drew another draft on the 24th March, and this draft also came back indorsed on the back, “Not correct. Insist on Poster & Co. paying the draft. Draw on them again.”
In his testimony Matthews says: “I at once, and about noon of said 27th day of February, 1897, returned said invoice and bill of lading to Freker. I mailed said bill of lading and invoice about noon, and placed thereon the necessary postage stamps, and addressed the same to L. A. Freker & Co., 1139 North Third street, St. Louis, Missouri. In due course of mail said letter containing said invoice and bill of lading would reach St. Louis, Mo., on the next morning, February 28th, 1897, and before the said car of potatoes could possibly have reached its destination at Mena, Arkansas.” The object of this statement evidently was to show that plaintiff had time to receive the car at Mena after he received back the bill of lading. But Freker says he never heard of the bill of lading after he sent the same to J. P. Matthews & Co., by their direction. Besides, the latter wrote a letter to plaintiff dated March 17, 1897, from Fort Smith, in which this language is used:
“L. A. Freker & Co. Gentlemen: We were surprised to find that you had drawn for the Mena ear at so late a date (March 11th.) Why did you not send the draft and bill of lading when you shipped the car, as you did the other (car), and we would have gotten Mr. Foster to pay the draft.” This means, if it means anything, that the invoice and bill of lading was not sent with the car. How, then, could these papers have been returned on the 27th February to Freker, as stated by Matthews in his testimony? The necessary inference from the letter is that the invoice and bill of lading had never been sent to J. P. Matthews before the first draft was drawn, if at all. The jury could fairly conclude that plaintiff had never received back the invoice and bill of lading he had sent to J. P. Matthews & Co.
If J. P. Matthews & Co. were liable at all, they were liable for the full value of the potatoes, for it was a total loss. They might have been sued in tort, but the plaintiff had a right to waive the tort, and sue them for the value of the potatoes, and this he did. They had brought about an anomalous condition of things,without the knowledge or consent of Freker; and, in order, apparently, to protect him at all events, had voluntarily taken the place of the nominal consignees and purchasers, by inducing Freker to transmit to them the evidence of title to the goods, and never made an attempt to protect their principal’s interest afterwards, and now defend by saying that they are tort feasors, if anything, and not purchasers, for an agent is not a purchaser. The difficulty is that, when they assumed to act as the consignees, they then ceased to be the agents of the plaintiff, but assumed an independent attitude. But because he had been kept in ignorance of J. Foster & Co’s true status by the conduct of his brokers,-plaintiff sued both. The jury found- the brokers liable, and that liability to be that of purchasers. ' At all events, that is the effect of it, and the instructions of the court were on that theory, and I think the trial court was correct in its view, and that the judgment should be affirmed.