
    Corinne Sinnette, Appellant, v. Henry C. Hoddick et al., Respondents.
    (Superior Court of Buffalo
    General Term,
    December, 1894.)
    A factor or agent must obey the instructions of his principal in selling articles consigned to him, and if he does not, he is liable for the damages sustained.
    Where the article has no fixed or market value, such as paintings, etc., the agent is concluded by the agreement of the parties fixing the price, but if the principal waives the contract and sues for conversion, he can recover only the actual value.
    The agreement under which property was left with a factor for sale fixed the minimum selling price at forty dollars. In an action against the factor for its conversion, plaintiff’s evidence tended to show that its value was over twenty dollars, while defendants testified that it would sell for ten dollars. Meld, that a judgment for ten dollars was not sustained by the evidence.
    Appeal from judgment of the Municipal Court of Buffalo in favor of plaintiff.
    
      Olvnton do Glcvrh, for appellant.
    
      E. L. JellvneTc, for respondents.
   Titus, Oh. J.

This is an appeal from a judgment rendered by one of the judges of the Municipal Court, without a jury, in favor of the plaintiff and appellant for ten dollars damages and costs. The defendants are dealers in pictures, paintings and engravings.

By the complaint it is claimed that on the 8th day of November, 1892, the plaintiff, being an artist, left an oil painting with the defendants for sale, under a contract, of which the defendants claim the following is a correct copy : “ I hereby agree to leave with Hoddick & Company the paintings Charlotta Corda ’ and 1 Little Pilgrim.’ The painting ‘ Charlotta Corda ’ to be sold for $300; the painting the ‘ Roman Pilgrim ’ to be sold for forty dollars, their commission to be ten per cent. These pictures at my risk.” This contract was signed by the plaintiff and left with the defendants, with the pictures therein described. The defendants have no recollection of having sold the painting called the Roman Pilgrim ” or Little Pilgrim,” and, on demand for the painting or the price for which it was to be sold, cannot return the painting, not having it or knowing what has become of it, and refuse to pay for it. Two points are raised by the plaintiff on this appeal: First, that the plaintiff is at least entitled to recover the sum mentioned in the contract, forty dollars, as the price under which it should not be sold, and, second, that there is no evidence warranting the court below in giving a judgment for ten dollars.

On the first proposition, the plaintiff invokes the rule that where articles have no settled or fixed market value, such as paintings, statues and vases, and the factor refuses to return them, he is liable for at least the minimum price fixed in the contract with the agent. In Blot v. Boiceau, 3 N. Y. 78, the plaintiff consigned to the defendant in New York a quantity of wine to be sold on commission at a minimum price fixed in the letter of instructions. The defendant, on receipt of the goods, made advances to the plaintiff, and afterwards sold the goods at public auction to repay his advances, obtaining therefor less than the price mentioned in the letter of instructions. The court held that the defendant was bound by the instructions of his principal, and could not sell for less than the price fixed by the principal, and was hable for the damages consequent upon the sale without authority, and that the price in the invoice ought to be regarded as the value of the goods, if no other evidence of their value had been offered, citing ' Stevens v. Low, 2 Hill, 132, but that when the goods have a market value the party is only liable for such market value; Judge Beohsou, in his opinion, adding that “ when the consignment is of articles which have no market value, such, for example, as antique paiiitings, statues or vases, the rule which has been mentioned will not apply.” In Hinde v. Smith, 6 Lans. 464, the plaintiff consigned whisky to the defendant in Hew York city, to sell at one dollar a gallon, and the defendant sold it for seventy cents a gallon. The court say the defendant was liable for selling contrary to his instructions, but that the measure of damages was the actual market value in Hew York, but that a different rule obtained in case of articles which have no fixed or known market value. In Guy v. Oakley, 13 Johns. 333, it was held that where the principal limited his agent as to price he had no right to sell under it; if he did he would be liable. The same rule was stated in La Farge v. Kneeland, 7 Cow. 456.

It is a general rule that an agent must obey the instructions of his principal, or he will be liable for the damage sustained by the principal. Johnson v. N. Y. C. R. R. Co., 33 N. Y. 610 ; Loeb v. Hellman, 83 id. 601 ; Comley v. Dazian, 114 id. 161.

In Stevens v. Low, 2 Hill, 132, the defendant sold certain mattresses to the plaintiff at an agreed price, payable in certain indorsed notes delivered to the plaintiff conditionally, that is, after going to and returning from Boston he was to deliver the notes or return the goods to the defendant in error. On his return Low demanded the goods or the notes, which Stevens refused to deliver. The court, by Justice Coweh, - say: “ Had the plaintiff below brought assumpsit he would _ have been entitled to the agreed price, subject to a deduction, should it turn out in proof that the notes were of less value. * * * The plaintiff below, however, disaffirmed the contract of sale, and treated the defendant as having wrongfully converted the goods to his own use. The action was trover, which goes for the actual value, with interest. * * * The agreement of parties on the price would be high evidence of value, but even in such case there is no rule which would estop the defendant from showing the truth.”

It would seem from these authorities that the agent must obey the instructions of his principal in selling articles consigned to him; that in case such articles have no market value the agent is only liable in assumpsit for their market value. In the absence of proof, the agreement of the parties fixing the price at which the articles may be sold will be assumed as the market value, but it is open to proof like any other question.

When the articles have no fixed or market value, such as paintings, statues, etc., the agent is concluded by the agreed price, but if the principal elects to waive or disclaim the contract, and sues for a conversion of the property by the agent, the principal can only recover the actual value of the property. The present action is for the wrongful conversion of the painting by the defendants, and it follows that he can only recover in such an action the actual damage which he has sustained, and that question, like any other fact, must be determined from the evidence on the trial.

I do not think that the judgment, however, is sustained by the evidence in the case, and as I view it there is no evidence from which the court below could legally conclude that the painting was worth but ten dollars. The agreement of the parties is in evidence, wherein the price of the painting is fixed at forty dollars, which is “ high evidence ” of its value. Stevens v. Low, supra.

The plaintiff testifies that the painting was worth $100, and Oecelia M. Sinnette, another witness, on her cross-examination stated that the picture was worth more than ten. or twenty dollars, and she seems to have some knowledge of the value of this particular painting. The only testimony of the value of the picture given on behalf of the defendants is by the defendant Frederick Hoddick himself, when he says the picture would sell for ten dollars. This, taken in connection with his former statement that he hardly knew how to answer the question as to what the value of the picture was, seems to me to furnish no proof of value. If it would sell for ten dollars it is no evidence that it would not sell for more than ten dollars. He says the frame would be worth two dollars and a half, and he does not include the frame in his figure of ten dollars, for which he claims the picture would sell. Besides, the defendants in their answer allege the plaintiff’s loss sustained was not more than twenty dollars, but on the trial, after the proof was in, the defendants amended their answer so as to allege that the loss sustained by the plaintiff was not more than ten dollars. This may not be any evidence of the value of the painting, hut it is material in explanation of what the defendant meant when he said it would sell for ten dollars, leaving the fair inference that he did not intend to fix that sum as the value of the picture. I think, for the reason that there is a want of evidence to sustain the judgment of ten dollars, the judgment below should be reversed, with costs.

White, J., concurs.

Judgment reversed, with costs.  