Kendall v. Earl

HAYNES, C. Plaintiff resides at Sacramento, and grows fruit in that county. The defendants are commission merchants doing business at Chicago, Illinois. On October 9, 1889, plaintiff shipped to defendants 22,758 pounds of dried French prunes, and 3,937 pounds of soft-shell almonds, under the terms stated in the following contract:

“Sacramento, Cal., October 9, 1889.

“Earl Bros. Co., Chicago, Illinois.

“Gentlemen: I shipped you per S. P. and U. P. B. B., in C. P. car 1282, 22,980 lbs. dried French prunes, and 4,000 lbs. of soft-shell almonds, to be sold by you on commission, at 4 per cent, to you. On said consignment I have received an advance, per check of George Dietrich, of $1,200.00, on which advance you are to charge me interest, after thirty days, at' 7 per cent, per annum. This consignment you are not to sell, unless at the following prices: For the prunes, 9 cts.; for the almonds, 14% cts. per pound,—without advising me of the offers made for these goods at figures below those named, and I instruct you to accept a less sum than the figures named above, after receiving such advice from you.

“W. S. KENDALL.

“This is correct, and we agree thereto.

“MILTON BROWN.”

Milton Brown was an agent of defendants, and no question is made to the validity of the contract. In November, 1889, the defendants sold the prunes for six and one-half cents per pound, and the almonds at eleven cents, without communicating with the plaintiff, making a difference against the plaintiff of $678.47, to recover which sum plaintiff brought this suit. A jury trial was waived, and the court made the following finding: “That all the facts alleged in the complaint are true, but that, after the sales by the defendants [353]of the prunes and almonds as alleged in the complaint, the plaintiff ratified, approved and confirmed the acts of the defendants in making such sales.” Judgment was entered for the defendants, and this appeal is from an order denying plaintiff’s motion for a new trial, and the only question is whether the evidence is sufficient to justify the finding that plaintiff ratified the sale made by defendants. There is no appeal from the judgment.

The sale of the almonds, with the price at which they were sold,- was reported by the defendants to the plaintiff by letter dated at Chicago, November 15, 1889; and the sale of the prunes was in like manner reported, under date of November 25, 1889. The almonds were sold November 14th, and the prunes November 21st, and the prices at which they were sold were the market prices at the dates of sale. The evidence tended to show that from the time these sales were made the market remained about the same, or at least with slight fluctuations, until in March, when there was a slight improvement; but as to whether, in that month, the prices named in the contract could have been realized, the evidence was materially conflicting. Several other shipments were made by plaintiff to defendants of prunes and other fruits, and almonds, upon which defendants also made advancements. As before stated, defendants informed plaintiff of the sale of the almonds by letter dated November 15th, and of the sale of the prunes by letter dated November 25th. On November 28th the receipt of both of said letters was acknowledged by plaintiff’s clerk, in which defendants were informed that Mr. Kendall was out of town, and would reply more fully in person, when press of business would allow, as no one else understood it. The plaintiff testified that at the time these letters were received he was at Los Angeles, “and was gone a good while”; that he did not remember what time he came back; that he was in Pasadena on Christmas day, and returned some time between that and January 2, 1890, and on that day wrote the defendants, without any mention of the defendants’ letters received in his absence, as follows: