
    *John Black v. William Webb.
    Where B. gave to W. a memorandum in writing, substantially setting forth that B. had received $175 as an advance to buy barley for W., and B. agreed to deliver at a certain place, within a certain time, and for a certain price, 1,000 bushels of merchantable barley, it is a contract of sale, and not an agreement constituting an agency.
    When before the time stipulated for the delivery, and before actual delivery, a portion of the barley stored in the warehouse, mentioned in the agreement, was destroyed by a flood, the loss falls upon B., the property being at his risk until delivery.
    Error to the common pleas of Stark county.
    In the common pleas the action was assumpsit, tried at the October term of the court, a. d. 1850, and verdict for plaintiff, (Webb), $253.43, damages, for which judgment was rendered.
    Exceptions were taken to the ruling of the court in refusing to set aside the verdict and grant a new trial; and the whole testimony is set out in the bill of exceptions.
    The plaintiff below predicated his right to a recovery upon an alleged violation of the following written memorandum, signed by defendant:
    “ Canton, February 7,1848.
    “Received (175) one hundred and seventy-five dollars as an advance to buy barley for Wm. Webb, for which I do agree to deliver (1,000) one thousand bushels of barley to Mr. Reynolds’ warehouse, in Massillon, at (35) thirty-five cents per bushel, by the middle of April next—the said barley to be good merehantaable barley. “ John Black.”
    It appeared in evidence, that between February 7 and 22) 1848, Black deposited in the warehouse of Reynolds, at Massillon, six hundred and fifty-two bushels of barley, which was placed to his credit on the books of Reynolds, and *for which receipts were given, as the different parcels arrived, of the tenor following:
    “ Massillon, February, 19, 1848.
    “Received in store, of J. Black, per Mt Fulmer, fifty-one and forty forty-eighths bushels barley, at charge and risk of owner.
    “ J. L. Reynolds & Co.”
    During the night of February 22, 1848, the reservoir at Massillon broke, and the waters swept away the warehouse of Reynolds & Co., and the barley deposited therein was all lost. After the flood, and between that and the middle of April, 1848, Black delivered at the warehouse of Reynolds, in Massillon, three hundred and fifty-one bushels of barley, which was also receipted for in his name, and credited to him on the books of Reynolds & Co. These last receipts, together with those for the lost barley, making, in all, receipts for one thousand and three bushels, were tendered to Webb on or before April 15, 1848, but he refused to receive thorn. It was understood at the time of this tender, by Webb and the agent of Black, who made it, that there were then no more than three hundred and fifty-one bushels of barley remaining in the warehouse—the rest having been swept away by the flood. He was willing to receive the quantity on hand at the stipulated price per bushel, but was not willing to lose the barley that had been destroyed.
    The firm of Reynolds & Co. never received orders from Black to deliver any portion of the barley to Webb, and would have delivered the property, at any moment, to the person returning to them their warehouse receipts.
    It was in evidence that Black resided in Canton, and bought the barley there, and sent it to Massillon; that while Black was buying the barley in small loads, at Canton, Webb, who was occasionally in Canton, frequently came to Black’s store, and if barley was offered by persons when Webb was there, he examined it. •This frequently happened. One load, thus offered, Webb said ho would not take, it being of inferior quality.
    *Griswold & Hazlett, for plaintiff.
    Webb sued to recover his advance to Black, of $175, and tho advance in the price of barley. The question arising is, which party shall sustain the loss occasioned by the destruction of tho barley? We claim that, in the language of the contract, “ Black was buying barley for Webb,” was an agent, and that when tho barley was stored in the warehouse of Reynolds it was at the risk of Webb. Tho fact that Black took warehouse receipts in his own name does not conflict with this view! If he purchased faster than Webb advanced money, he had a right to hold on to the barley until paid. But it can not be objected that tho receipts gave Black the power to sell tho barley, for he did not do so. An agent may always abuse his trust, but he is still an agent. The parties did not contemplate a delivery of all the barley on one day. Tho contract was to buy for Webb, and he was not divested of his ownership by taking receipts in Black’s name. The barley was his.
    
    G. W. Belden & Leiter, for defendant:
    None of the doctrines of the law applicable to principal and agent can be enforced against either of the parties in this case. ' For authorities wo refer—
    1. As to powers and duties of agents ;
    2. As to rights and liabilities of principals;—to 2 Kent, 617; 1 Kinne’s Law Comp. 20; 8 B. Monroe, 310; Peterson v. Poignard, 6 Washburn, 129; 2 Wills. 325; Pet. U. S. Dig., tit. Agency.
    An agent is a person authorized to do some act or business, in the name of the principal. He is the mere creature of the principal—bound by his authority, and subject to his instructions. In this case, Black was not bound to obey instructions, and not liable for buying bad barley. Webb was not liable for any fraud or misconduct of Black. He would have been, *if Black was a mere agent. The death of either party would not have terminated this contract, as it would an agency. If the relation of prin„ cipal and agent existed, Webb could have terminated the agency, changed tho price to be paid for barley, the quantity to be delivered, and the place of delivery.
    Black was bound to buy 1,000 bushels of barley, let the price be what it might. If he was an agent, he could not buy at a price exceeding 35 cents per bushel, and if he could Dot buy beyond that price he was not bound to deliver a bushel. Such is not the true construction of the contract. Tho ownership of the barley never passed to Webb. 2 Kent, 500, 496 ; Long on Sales; Story on Sales, 314, sec. 504; Chit, on Cont. 376, n. 1; Ward v. Shaw, 7 Wend. 404; Story on Cont. 316, sec. 507. Webb was not bound to receive the barley before the “ middle of April,” and the tender was about April 1, of the warehouse receipts—not bai’ley.
    John Harris, for plaintiff, in reply:
    The contract was ' only signed by one of the parties, and was delivered to the other. It was a receipt for the $175. Had the parties understood it as anything other than a contract of agency Black would have exacted something from Webb to perfect the contract, or to bring Webb to accept and pay for, as well as Black to buy and deliver. - Black was under no obligation to buy except as Webb advanced money. If Black had bought barley at 20 cents or 50 cents per bushel, it would not affect his agency. If Black received the $175 “ to buy barley for Webb,” it can make no difference if he bought at 10 cents per bushel. He might have bought as agent to bring custom to his store also, if he made no profits on the barley.
   Spalding, J.

There is but a single question growing out of the facts in this case. Was Black the agent of Webb in purchasing and storing this barley at Massillon ? or was he the vender of a thousand bushels of barley to Webb, to be delivered -¡'within a given time, at a certain place, and for a stipulated

price ? If the former, the law will cast the loss upon his principal ; but if the latter, the misfortune .will be his own, unless he had perfected a delivery of the grain before the accident.

We have none of us any doubt that the conduct of Black, in this whole transaction, was what the parties contemplated it would be when they entered into the arrangement of the 7th February. He was expected to purchase the barley, in small parcels, at different intervals, and to store it, as occasion might require, at the appointed place in Massillon ; and when the quantity of a thousand bushels should be there deposited, it was doubtless the understanding that the warehouse receipts would be taken by Webb, and the balance of the purchase money be paid over to Black. But a contingency has happened that could not have been foreseen, and, of course, was not provided for by the parties. It was not anticipated that the canal reservoir at Massillon would break through its banks and flood the town. If it had been, the parties could have stipulated as to the loss arising upon the happening of that event. As it is, a loss has occurred without the fault of either party, and the law must decide upon whose shoulders it shall rest.

It seems to a majority of our number that this was a contract of purchase and sale, and not an agreement constituting an agency. If we change very slightly the order of the phraseology, the intent of the parties will become more apparent.

“I do agree to deliver at Reynold’s warehouse, in Massillon, by the middle of April next, 1,000 bushels of good merchantable barley, at 35 cents per bushel, and have received from William Webb $175 as an advance to buy barley for him.
“John Brack.
February 7, 1848.”

Now, it made no manner of difference with William Webb ^whether the price of barley rose or fell in the mai’ket between the 7th of February and the 15th of April, 1848. He was sure of 1,000 bushels at the price of 35 cents; and, peradventure, it might cost John Black 50 cents a bushel, before the day of delivery arrived. There is nothing characteristic of an'agency in this.

If Black purchased all or a part of this “ thousand bushels ” of barley from the farmers of Stark county, on a credit, his insolvency would not justify them in asserting a claim against Webb for the price of their property delivered to Black. There is nothing characteristic of an agency in this.

Again: Webb had no right, by the terms of the agreement, to dictate to Black when and where he should buy this barley, or when he should stop purchasing. There is nothing characteristic of an agency in this. In fact, we do not discover from the testimony, that any right of property in this barley could vest in Webb—not even to the extent of the money advanced—until such time as Black should see fit to make actual delivery of the grain or pass over to him the warehouse receipts. It is in evidence that the warehousemen would have felt bound to deliver the barlejr to any person, or persons, presenting to them those receipts. These important evidences of ownership Black retained within his own control until after the loss.

How can it be said with certainty that this barley would have been transferred to Webb in case the warehouse had not been swept away? Black had, in himself, the absolute power of disposal, at any and all times, so long as he retained the receipts; and Webb could, with no sort of propriety, object to a sale of the property in store, so that, at the last, he received, in quantity and quality the barley, which Black had agreed to deliver to him.

By making application of these tests, and others that could be easily enumerated, we are brought to the conclusion that John Black, the plaintiff in error, purchased this barley—not as the agent or factor ofWm. Webb, but on his own private account, and for the purpose of filling a contract of sale, ^entered into, and then subsisting between himself as the vender, and Wm. Webb as the vendee.

In this view of the subject, the risk of the property would remain with Black until he should deliver the barley or transfer the contract thereof to Webb. The loss happened before such delivery or transfer, and must be borne by Black alone.

The judgment of the common pleas will be affirmed with costs.

Ranney, J., dissented.

Hitchcock, C. J., was absent, and did not participate in the decision of this cause.  