Numsen v. Levi

PER CURIAM. In November, 1891, Duval & Co., merchandise brokers at San Francisco, claiming to represent plaintiffs, who were doing business as oyster packers at Baltimore, Maryland, offered for sale to the appellants a lot of canned oysters at a shade off current rates. The offer was accepted upon condition that the packers should execute a written guaranty to appellants that the goods were as good in pack and quality as the goods of Farren & Co. or Fait & Weinbrenner, well-known oyster packers. A written order was given for four hundred and sixty cases of “selects” and six hundred and seventy cases of “standards”; the prices for both lots being fixed at $2,000. The oysters were to be delivered at Baltimore, in unlabeled cans—the purchasers being allowed the cost of labeling—as follows: “60 cases of selects, made up of 40 cases of 12 oz. and 20 of 6 oz. cans; and 90 eases of standards, made up of 25 cases of 10 oz., 20 of 5 oz., 25 of 8 oz., and 20 [632]of 4 oz., cans”—to be delivered at the cars in Baltimore, and sent to San Francisco by freight, the balance of the order by sailing vessel. Duval & Co. did not communicate with the packers, as they agreed to do, but took the written order given them by the appellants, and, without the knowledge of the latter, wired B. C. Shriner & Co., brokers at Baltimore, as follows : “Levi—selects, 340 12’s, 126’s; standards, 225 10’s, 125’s unlabeled; Numsen’s labels, 124’s 222 8’s, $1.45. Getz— 200 selects, 12’s unlabeled. Have sent shipping directions. Selects must fully equal best sample. Standards must be as good as the pool. Express us samples of both. Credit us overcharge on all 8’s. W. M. Duval & Co.” Upon receipt of this dispatch, Shriner filled the- order by purchasing from the respondents three hundred and forty-five eases of standards—two hundred, and twenty-five eases of the ten ounce, and one hundred and twenty of the five ounce—at the prices agreed upon by appellants and Duval & Co., and by purchasing from other parties the balance of the order, and delivered to the respondents a memorandum in writing (or “sold note,” as it is called) for that portion of the order purchased from them. The note reads as follows:

“Baltimore, Nov. 19,1891.

“Bought of William Numsen & Sons, for account of H. Levi & Co., San Francisco, Cal. (description of the goods), terms 60 days or cash, less one and a half per cent. Hold for shipping directions.

“E. C. SHRINER & CO.”

Thereupon Shriner wired to Duval & Co., to the effect that the respondents confirmed the sale to Levi & Co., upon receipt of which Duval & Co. made out a memorandum of sale, called a “bought note,” and delivered it to Levi & Co., who have ever since kept it, and have never offered to return it. This bought note is in two parts—the one covering the shipment by rail, and the other by sailing vessel. Copies of this bought note were mailed to Shriner & Co., and received by the former on November 25th; and on the last-named day they wrote to Duval & Co., confirming the sale, but no written guaranty was ever furnished. Duval & Co. had no correspondence with plaintiffs on the subject, and had no instructions from them. On December 2d, in accordance with instructions from Shriner & Co., the respondents delivered the rail shipment at