
    SAMUEL L. GRAHAM, Plaintiff and Respondent, v. ROBERT L. MAITLAND, Survivor, &c., Defendant and Appellant.
    In cases where the damages to be recovered depend upon the market value of the goods, the law contemplates a range of the entire market, and the average of prices as thus found, running through a reasonable period of time. Proof of a single sale is insufficient to establish the market value of the goods so sold.
    Before Monell, McCunn, and Freedman, JJ.
    
      [Decided May 3, 1869.]
    This action was to recover damages alleged to have been sustained by reason of alleged violation of instructions in regard to sale of cotton consigned by the plaintiff to the defendants as commission merchants in New York City, and was tried before a referee.
    The case came up on ,appeal to the general term on exceptions to the referee’s report. The principal exception raised the question as to the value of the cotton in controversy. The plaintiff charged the defendant with selling in disobedience to orders. The defense was that the defendant sold according to instructions, and in trying the issue it became necessary to show what was done with the Coholl consignment. The referée found that a part of the consignment was sold in violation of instructions, and took as his measure of damages the price at which four bales of the consignment were sold on a particular day, making a deduction from this price of two cents for difference of quality. The referee, in estimating the damages, took the value of the cotton on the 21st day of October, 1865. The testimony as to the market value was introduced incidentally, being put in evidence on the question of instructions to sell. The instructions relied on by the plaintiff were given on the 11th of October, and the only evidence of what cotton sold for on the 21st of October is obtained from the account of sale of four bales of cotton on that day.
    
      Mr. Henry A. Cram for appellant.
    The measure of damage was the market value of the cotton at some subsequent time. This the plaintiff was bound to prove, and, failing to prove, could not recover. Evidence of a single sale, by either the defendant or by some third party, of four bales on a particular day, is not sufficient evidence of market value.
    The market value of the cotton should have been proved.
    “ The ordinary and proper manner of ascertaining such value (market value) is by the examination of witnesses acquainted with the market prices,” &c. (Dana v. Fiedler, 1 E. D. Smith, 470).
    
      “ The rule of damages was correctly laid down by the Court, and the market value of the article' * * * requires an investigation of the actual condition of the market ” (same case, 2 Kern., 47).
    
      “ The law, in regulating the measure of damages, 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).
    
      Mr. Edgar S. Van Winkle for respondent.
    The case turned upon a question of fact, namely, whether the plaintiff gave the instructions which it is claimed he did in regard to the holding and sale of a certain quantity of cotton which had been consigned by him to the defendants in the summer and autumn of 1865.
    That question of fact the referee has decided in favor of the plaintiff.
    Upon that question conflicting testimony was' given by the respective parties, and the referee having found in favor of the plaintiff’s statements, his report is conclusive, unless it is against-the clear preponderance of the testimony (Van Steenburgh v. Hoffman, 15 Barb., 28; Woodin v. Foster, 16 Barb., 146 ; Sinclair v. Tallmadge, 35 Barb., 602; Dunning v. Roberts, 35 Barb., 468; Smith v. McClusky, 45 Barb., 610; Colwell v. Lawrence, 24 How., 326; Davis v. Allen and others, 3 N. Y., 168; Miller v. Lockwood, 32 N. Y., 293).
    The proof of market value was sufficient.
   Freedman, J.

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 21st 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 of 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.

Monell, J.

(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 sale, 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.  