Harrison v. . Glover , 72 N.Y. 451 ( 1878 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The restrictive clause in the contract that the blankets should not be sold "for less than those made by Dobson Scofield, of Philadelphia," was inserted for the protection of the plaintiffs. They were to send their blankets to the defendants in New York, who were to sell them and account to the plaintiffs for the price for which they should be sold, deducting five per cent from the billed price. They were to be sold in competition with the blankets of Dobson Co. The clause in question was inserted to prevent the defendants from making sales at a less price than that at which the blankets of Dobson Co. were held in the market. The price of the Dobson Scofield blankets could be determined as well by offers to sell, made by Dobson Co. in the ordinary course of business, as by actual sales. A price-list, stating the price at which a manufacturer will sell, or statements of dealers in answer to inquiries, are competent evidence of the market-price of a marketable commodity, and is a common way of ascertaining or establishing a market-price. (Cliquot's Champagne, 3 Wall., 143; Lush v. Druse, 4 Wend., 313.) It was competent for the parties to provide that the price of Dobson Co.'s blankets, as ascertained by actual sales only, should govern the price of the plaintiffs' blankets. But the parties did not understand this to be the meaning of the contract, as is apparent from the letter of the defendants to the plaintiffs, of November 2, 1870, and the subsequent interview between the parties. This letter, written on the day the sale was made, of which the plaintiffs complain, states that Dobson Co.offer their blankets at "thirty cents per pound, less four per cent at four months," and that "we shall feel it our duty to you to allow the price of your goods not to go lower." At the interview between the parties a few days afterwards, the plaintiffs complained of the sale as having been made at too low a price, and stated that they did not believe "it was Wilson's price," and a proposition was made to go and see Wilson, who was the agent for the sale of Dobson Co.'s blankets, and ascertain whether it was his price. The plaintiffs did not claim that if these blankets were sold at the price for which Dobson Co.'s blankets were offered the defendants were not justified in making the sale. The plaintiffs desired to sell their blankets. It could not have been expected that the sales made by the defendants would be at the precise times of sales made by Dobson Co. The defendants could readily ascertain, by inquiry, the price at which the blankets of Dobson Co. were held, but they might not be able to know of actual sales, or the prices obtained. Were they to forego the opportunity to sell the plaintiffs' goods, or sell them only at the peril of loss, in case it should turn out that the last previous sales made by Dobson Co. were at higher rates than the then market-price of their goods. We are of opinion that the construction put upon the contract by the referee, viz., that the defendants were authorized to sell the plaintiffs' goods at the same prices at which the goods of Dobson Co. were sold, or offered in the market, is the correct one. Either actual sales of Dobson Co.'s blankets, or their market value, as ascertained by bona fide offers to sell, established the price. The sale of which the plaintiffs complain was made November 2, 1870, to Claflin Co., at thirty cents per pound, four per cent off. The referee finds that up to that time Dobson Co.'s blankets had not been sold in the market for less than thirty-five cents per pound, deducting five per cent; but on the ninth of November there was an auction sale of a large quantity of these blankets at thirty-two and one-half cents per pound, at four months, and it appears that Claflin Co. were the principal purchasers at the sale. The referee, however, finds that immediately before the sale by the defendants of the second November, the agent of Claflin Co. inquired of the agent of Dobson Co. how he would sell the firm of Claflin Co. two or three hundred bales of Dobson's blankets, to which the agent replied that he was going to sell that number, and would sell them to Claflin Co. as low as any blankets they could get in the market. Thereupon the agent of Claflin Co. asked the agent of Dobson Co. if he had better buy the plaintiffs' blankets at thirty cents, and the agent advised said firm not to buy them, and said that he would be back to New York in two or three days, and would sell them as low, or less, as they were going to clear them out, and the agent of Claflin Co. afterwards stated to defendants' agent, through whom the sale of November second was made, that he had no doubt that he could buy Dobson Co.'s blankets at thirty cents. The referee finds, as a conclusion of law, that this conversation between the agent of Claflin Co. and the agent of Dobson Scofield, amounted to an offer by the latter to sell the Dobson Co.'s blankets at thirty cents per pound, and that such offer fixed the market-price, and justified the sale in question. We think this conclusion is not warranted by the facts found. There was no negotiation between Claflin Co. and the agent of Dobson Co. for a present purchase of blankets. Claflin Co. made no offer to buy, and the agent made no offer to sell. The most that can be claimed from the conversation is, that the agent offered to sell at a future time at thirty cents or less, but the offer was made manifestly as a means of retaining a chance to sell the goods on his return from Philadelphia, where, as it appears, he was going, if he should then deem it for his principals' interest, or they should think it best to make the sale. It was not a present unconditional offer to sell, and the subsequent conduct of the parties shows that it was not so understood. The agent returned from Philadelphia in a few days, and immediately advertised the auction sale. The agent of Claflin Co. saw him, but made no allusion to the previous conversation, and in answer to a question, whether in the interview with Dobson Co.'s agent, after he had returned from Philadelphia, he referred to the prior conversation, said, "of course not, he had determined to put them in the auction rooms." We are of opinion that the transaction found by the referee was not an offer by Dobson Co.'s agent, which established the price of their goods. The plaintiffs cannot be bound by so indefinite a transaction. It was not necessary that the defendants should prove an offer which would be legally binding if accepted by them, but they were bound, in order to establish a defense, to show that an offer was made, in the usual course of dealing and business, having reference to a present sale, binding in honor in case of an immediate acceptance. Nothing less would give the plaintiffs the protection which the contract was designed to secure.

The judgment should be reversed, and a new trial granted.

All concur.

Judgment reversed.