Graham v. Maitland

The referee found that the plaintiff, on the 11th day of October, 1865, instructed the defendant to sell fifty bales of cotton, consigned to and received by the defendant since the 6th day of September, 1865. The plaintiff’s testimony shows that the said instruction was given by the plaintiff in a letter to the defendant, dated Pinewood, Tenn., October 7, 1865, as follows: “ I wish all this cotton sold, but insist that it should be held at the full price of middling cotton. If it will not command this price, after holding it on the market for a sufficient length of time, you will take what it will command,” &c., &e., and that the plaintiff, in another letter dated from the same place, October 11, 1865, addressed the defendant as follows: ‘‘I trust you will get me a good price for this cotton; at all events, if it is not sold when this reaches you, I wish it sold at the best price it will command,” &c., &c. The defendant, therefore, was not instructed to sell without the loss of a moment’s time upon the very day of the receipt of the order, but bad a reasonable time thereafter within which to negotiate and effect a sale at the best possible market price, and the measure of damages consequently is the market value of the cotton during that period of time. Such value the plaintiff was bound to establish affirmatively, by competent evidence, as a part of his case.

There is no evidence that the forty-nine bales of cotton previously sold in violation of prior instructions to hold the same, until expressly instructed to sell, were of the quality or grade denominated middling, and could be sold as such; on the contrary, the defendant showed that the said bales were of an inferior quality, termed low middling. It appears, however, that on the *15221st day of October, 1865, the defendant sold for plaintiff’s account four other bales of cotton, which were middlings, at fifty-eight cents per pound, and that sometimes the difference in price between middling and low middling ranged from one cent to two and a half cents per pound, according to the scarcity of the one grade or the greater quantity of the other, and from these facts alone the referee found that the market value of the forty-nine bales on the 11th day of October, 1865, was fifty-six cents per pound. There is also evidence to the effect -that in consequence of advices from England the cotton market in the month of October, 1865, became very agitated and unsettled. The important question therefore arises whether upon the facts as alleged the finding of the referee in regard to said market value can be sustained. To ascertain the same required an investigation of the actual condition of the market on the 11th day of October, 1865, and for such a short time thereafter as the defendant might have claimed as being necessary for the purpose of negotiating and effecting a sale at the best possible price. The law, in regulating the measure of damages and fixing the market value in a case of this description, contemplates a range of the entire market and the average of prices as thus found, running through a reasonable period of time (Smith v. Griffith, 3 Hill, 333).

The ordinary and proper mode of ascertaining such value is by the examination of witnesses acquainted with the market prices of the article during that time. The actual sales of the same article during said time in the market generally might, in this case, have furnished a proper standard of such value; and, in the absence of any other means to fix said value, the plaintiff might have even resorted to the opinion of witnesses dealing in the same article, as formed from their general knowledge of the business (Dana v. Fiedler, 1 E. D. Smith, 463; same case, 12 N. Y., 40).

But no case can be found in the books in which proof of a single sale has been held sufficient evidence to establish the market value of the article so sold; and the difficulty in the present case is further increased by the fact that the four bales *153of cotton sold on the 21st day of October, 1865, were not even of the same'quality.

The evidence is insufficient to sustain,the finding of the referee upon this point, and the judgment entered in pursuance of said report. The judgment, therefore, should be set aside, and a new trial ordered, with costs to abide the event, and the order of reference should be vacated. '

Under these circumstances it is unnecessary to consider the other points raised by the defendant.

(concurring). -1 think the referee in this case assessed the damages upon insufficient proof of the market value of the cotton. Hone of the usual proof of market value was given. Indeed, no proof whatever had been given when the plaintiff closed his case. On the part of the defendants, Wright, one of their clerks, testified that he had made up a table showing the dates of arrival, and times of sales and times of shipment of cotton, which was read in evidence. Such table contained, among other items, the following : “ Four bale's shipped by Graham, September 18; shipped by Hamilton, September 26 ; received by Maitland, October 11; sold by Maitland, October 21—58 cents.” Upon this table, showing a sale on the 21st of October, by the defendants, of four bales at 58 cents, the referee, without any further or other proof of the market value, fixed such market value at 56 cents.

I am inclined to think the rule of damages adopted by the referee was correct. Upon a sale by an assignee, in violation of instructions, the owner is entitled to damages, to be ascertained from the highest market value of the commodity between the period when the instructions were disobeyed'and a reasonable time thereafter, within which to commence an action for their recovery (Scott v. Rogers, 31 N. Y. R., 676). Proof, therefore, of the sale by the defendants of four bales, on the 21st, at 58 cents, was sufficient proof of value ás related to the four bales. But the referee has deemed it sufficient proof also of the value of the forty-nine bales previously sold. It was at most proof of a single *154sale, which has never, I believe, been regarded as sufficient proof of market value (Smith v. Griffith, 3 Hill, 333), and although it was some and probably competent evidence against the defendants, it was not by itself sufficient (Smith v. Griffith, supra). 1 do not see why this piece of evidence should be taken any more strongly against the defendants because it was furnished by themselves. It is at most an admission that they sold four bales of the plaintiff’s cotton for 58 cents. Had the same fact been proven by any other testimony, I do not think it would be claimed to be sufficient to establish market value; and to give it the effect which the reféree seems to have yielded to it, would make it operate as an estoppel upon the defendants to show that the market value was below the price they obtained for the four bales.

. I think that the evidence did not justify the referee’s finding the value of the cotton to he 56 cents, and I therefore, for that reason, concur in reversing the judgment.