Safford v. Kinsley

The opinion of the court was delivered by

Steele, J.

The plaintiff employed the-defendant to purchase butter for him. The jury have found that twenty-six of the seventy-one tubs he purchased were bought contrary to the plaintiff’s orders. The verdict also settles the fact that the plaintiff did not, after the purchase, promise or agree to accept the butter which was bought without authority, but wrote the defendant, in substance, “ meet me at the Georgia depot and I will select and take the butter I directed you to buy, or you may keep the butter and pay back to me the four hundred dollars I let you have.” The ruling of the county court now here for revision, was in effect that upon these facts being established, enough other facts were undisputed to entitle the plaintiff to recover the unpaid balance of the four hundred dollars for which the jury gave him a verdict. The only question then is, whether, upon the conceded facts and these facts found by the jury, he was legally entitled to the verdict he obtained.

It is very clear that the plaintiff was not bound to take the twenty-six tubs he did not authorize the defendant to buy. It is equally clear that the plaintiff was bound to take the forty-five tubs he did authorize the defendant to buy. But the obligation of the plaintiff to take these forty-five tubs was only co-extensive with the obligation of the defendant to let him have them. If the defendant’s conduct amounted to refusing the plaintiff permission to take them, it does not lie in his mouth to complain that the plaintiff did not take them in spite of him. If he refused to use the plaintiff’s money as directed for the plaintiff’s benefit, the plaintiff would be as clearly entitled to the recovery of it as if he had declined to use it at all.

Nor do the facts show such a case. On Thursday, the defendant, who for a stipulated price, was to deliver at the railway station the butter which he should buy on commission, drew to that agreed place of delivery the whole seventy-one tubs and left them there together.

On the same day he called on the plaintiff at St. Albans, and informed him he had left the seventy-one tubs there for him, and claimed and insisted that the whole was purchased in accordance with the plaintiff’s directions, and that the plaintiff was to take the whole, or at least all but the last lot. This the plaintiff was not bound to do. On Saturday the plaintiff examined the butter and found that a considerable part of it was butter which the defendant was not authorized to buy. He immediately wrote the defendant to meet him at the Georgia depot to select the butter which he directed the defendant to buy, and offered to take that butter. To this letter, which was received on Monday, the defendant made no answer and paid no attention, though persisting in his original claim that the plaintiff should take all the butter but the Case lot. In the time which intervened between the plaintiff’s writing the letter on Saturday and its reception by the defendant on Monday, the defendant had directed the station ^gent to hold the butter subject to his order.

The conduct of the defendant, instead of amounting to an offer of the forty-five tubs, very manifestly was equivalent to forbidding the plaintiff to take it until he should pay all charges and commissions on more than the forty-five tubs. The defendant now insists that the plaintiff should have picked out of the seventy-one tubs the forty-five he was under obligation to receive, and, after tendering the charges and commissions on them, have taken them unpermitted by the defendant; and claims that it does not appear by the bill of exceptions but he could have done this by the marks on the boxes. We do not think the defendant was bound to assert his right in this manner, even though he might have asserted it without a breach of the peace, and after what had occurred he was not bound to trust to the marks which the defendant had left upon the tubs. He was under no obligation to take upon himself the risk of picking out the tubs.

It was the agent’s duty to designate the property which he had purchased for his principal, and there was nothing unreasonable in the principal’s requiring the agent to come to the Georgia depot to complete what he should have done when he left the property there. It certainly need not be expected that the plaintiff should carry the butter back to the defendant’s residence to have it done, and after Monday, the plaintiff could not have obtained it without an order from the defendant, even for that purpose.

. The defendant’s failure to respond to the reasonable request of the plaintiff, that he would meet him at the station and designate the butter, which was bought as the. plaintiff directed, and which the plaintiff offered to take, amounted to a -refusal to the plaintiff to let him have that butter except in the only manner in which he had ever offered it, that is, with other butter which the plaintiff was not bound to receive. A refusal, except upon a condition the plaintiff was not bound to accept, has the same effect as an absolute refusal, and the plaintiff was entitled to treat it as an entire repudiation by the agent of his agreement, and to sue for and recover the money which he had advanced to the defendant towards making the purchase. Upon this ground the plaintiff is entitled to an affirmance of the judgment in his favor, entirely independent of the consideration that the defendant afterwards took the butter, and that the plaintiff’s letter contained an offer that he-might.

Judgment affirmed.