
    
      GILLY & AL. vs. HENRY.
    
    Appeal from the court of the parish and and city of New-Orleans.
    There is not any necessity of a case being set forth in the petition in various modes or counts, to authorise the plaintiff to offer proof, which supports his case in substance.
    If the vendee refuses to take away the goods, the vendor, after proper notice may sell them for the account of the vendee.
    The petition alleged that the plaintiffs sold the defendant, one hundred barrels of flour, half fine and half superfine, at 13 dollars per barrel, then lying in their warehouse ; that in order to accomodate him, they agreed to suffer the flour to remain there for a few weeks, and he promised to pay a part of the price in a few days after the sale (May 21, 1817) and the residue at, or before, the removal, which he promised to effect within weeks ; that they frequently applied to him to remove the flour, which he as often promised to do and which he utterly neglected, till a few days before the 31st of July, when he absolutely refused either to take the flour or pay the price ; that they applied by letter to him (inclosing bill for said flour) as appears by a copy of said letter and bill, annexed to the petition, warning him that, if he did not come forward, they would have the flour sold on his account ; that he still neglected to come, and the flour growing daily worse, on account of the heat, they caused it to be sold at auction, and the net proceeds amounted only to $408 84, which deducted from 1350, leaves a balance of $953 66, including 12 50, for storage due them.
    East’n District
    
      July, 1820.
    The defendant, in his answer, denied that he purchased the flour mentioned in the petition, and pleaded that if the plaintiffs ever did sell it, or any other to him, they lost their recourse in sacrificing it, by an unauthorised sale.
    Dutillet deposed, that in May, 1817, he was a clerk to the plaintiffs, and on the 22d of that month, the plaintiff Gilly told this deponent to keep one hundred barrels of flour, from a parcel out of which he had sold one hundred barrels to Liddle, as he had sold that quantity to the defendant ; that towards the beginning of June, he went to the defendant with a note from the plaintiffs, desiring him to send them 650 dollars in part payment of the one hundred barrels, spoken of, informing him they were at his disposal : that the defendant, having read the note, replied he had payments to make which prevented an immediate compliance, but he would pay the sum, in the course of the following week ; that some time after, he handed the defendant a letter, a copy of which is annexed to the petition, which he returned unopened, observing he had nothing to do with the plaintiffs. Flour of the quality sold to the defendant, sold from 13 dollars, to 13 50. A fortnight after, flour fell considerably ; in the latter part of June, it was at 9 or 10 dollars. The plaintiffs had that, sold to the defendant, disposed of at public auction.
    On his cross examination, this witness added, that one M'Gowan, kept the plaintiffs’ books at the time, and the entry, charging the defendant with the flour, is in the hand writing of said M'Gowan, who is now absent, and, as he believes. in England.
    M’Clellan deposed that he was, at the same time, a clerk of the plaintiffs ; the defendant went with the plaintiff Gilly into the back yard and on their return the latter told the deponent he had sold to the defendant one hundred barrels of flour, and desired that they might be kept for him, out of a lot, from which Liddle lately had the same quantity. Those kept were of a superior brand. There were frequent applications made, and the quantity might have been sold several times, had it not been reserved for the defendant. Seven or eight days after, flour began to fall, and in June was down to 9 or 10 dollars. The quantity reserved was afterwards sold at auction, as it grew sour. The deponent tried to have a conversation with the defendant about the flour, but could not succeed ; he would always evade if, and once particularly he turned off in a pet, saying something which the deponent did not understand. The deponent saw the defendant with the plaintiff, Gilly, looking at the flour.
    It was admitted that on the 20th of May, 1817, the defendant was not indebted to the plaintiffs.
    The auctioneer’s bill and printed advertisement was read by consent.
    Judgment was given in the parish court for the defendant, the judge being of opinion, that the testimony of Dutillet left no doubt that a sale had been agreed upon between the parties, as is alleged in the petition : but, it appeared to him that the conduct of the plaintiffs was a bold step, without any legal authority ; that our laws provided for the vendors proper proceedings for redress by sequestration and provisional sale, if the article be of a perishable nature ; that their proceeding, without authority of justice, to the resale of the flour by auction, was unjustifiable. The plaintiffs appealed.
    
      Porter, for the plaintiffs.
    Two questions present themselves to the court. Has there been a sale, of the flour, made to the defendant ? If there was, had the plaintiffs a right to dispose of it at auction, as they have done, and charge the defendant with the loss ?
    I. The evidence of Dutillet and M'Clelland establishes the sale beyond controversy. And really it is believed, that few cases of this nature could be more satisfactorily proven. What constitutes a sale ? A “ thing sold, the price and consent.” Civ. Cod. 344, art. 1. For proof of mercantile sales, “ the non controverted deposition of a single competent and credible witness may be sufficient,” id. 310, art. 245. Let us then examine the testimony, to this point. It is admitted, as appears by the record in this case, that the defendant, on the 20th of May, 1817, owed the plaintiffs nothing, that he is charged with the purchase of the flour in question, on the 21st of May, 1817, that on the day following, the plaintiffs directed Dutillet, their clerk, to reserve 100 barrels out of a certain parcel of flour, part of which he had sold to Liddle, observing, that he had sold the same to the defendant. That about the latter end of the same month, or the beginning of June following, Dutillet was sent by the plaintiffs, with a note to the defendant, requesting the defendant, to send them 650 dollars, on account of the said 100 barrels of flour, before spoken of, and that the same was at his disposal in their warehouse of Gilly and Pryor. That Dutillet handed this note to the defendant, who read it, and then returned for answer, that he had some cash to pay that week, on account of some purchases he had made, and could not then pay, but that he would pay in the week following, M‘Clelland, also, a clerk of the plaintiff, stated, that sometime between the 20th and 30th of May, 1817, the defendant went with Gilly, one of the plaintiffs, in their back yard, where they had some converversation ; that upon their return, Gilly told the deponent, that he had sold the defendant 100 barrels of flour, and directed him to keep the same for the defendant, out of a certain parcel, which they had then on hand, in Canal street, next door to Liddle’s ; that the said one hundred barrels of flour, reserved for the defendant, were of a superior brand. Both witnesses declare, this flour would have been frequently sold, both at the time and some days after, for the same price charged to defendant, and even higher. That flour fell a few days after in value.
    Can there then, it is repeated, be evidence, more conclusive, in a mercantile transaction of this kind, to establish the sale of the flour in question. Is it natural—might it not be said, is it not absurd to suppose, that the defendant, being thus addressed by the plaintiffs, claiming $650, in part payment of 100 barrels of flour purchased of them, should return the answer he did, if he had not made the purchase. And what inducement it may be asked, had the plaintiffs to reserve this flour, for the defendant, when they could, with facility, have disposed of it to others, at the same and perhaps, at a higher price, unless a sale was actually made to the defendant? The reason of the defendant not taking the flour is obvious ; at the time he purchased, flour was scarce, and at a high price ; he was a baker, and must have the article ; a few days after, a quantity of flour arrived in market and the article depreciated. But it may be said, admitting the purchase to have been made by the defendant, what was the price to be paid by him for the flour ? In the first place, the defendant does not dispute the price, at which the flour is charged to him, 13 dollars, but contents, himself by denying, that he ever purchased the flour in question ; that the plaintiffs, by their sale of the flour, have lost their recourse upon him. Proving, therefore, a purchase (the price charged not being disputed) of the flour in question, would seem to be satisfactory, evidence of the price at which it was sold : it ought to be conclusive. But, to go further, let us examine the testimony of Dutillet and M'Clelland upon this point. Dutillet declares “ that the price of flour at the time, and of the quality of that in question was then from 13 to 13½ dollars. Flour was then scarce, and he could have sold it several times, at the same price that the defendant was to give for it, after the 22d of May, when he first understood it was sold to the defendant ; that about ten or fifteen days after the sale made to the defendant, flour fell considerably in price ; that the defendant is charged on the plaintiffs’ books, with the flour, as stated in the account sued upon, as appears from the witness’ cross examination by the defendant’s counsel.
    McClelland declares, “ that the 160 barrels of flour reserved by the plaintiffs for the defendant, were of a superior brand (Brown and Worthington) that at the time of the sale to defendant, flour were selling from 13 to 14 dollars ; that at this time the plaintiffs had frequent applications for flour of this brand, but did not consider themselves at liberty to dispose of the flour in question, in consequence of the sale made to the defendant. It is, therefore, submitted whether the defendant, by his plea, not disputing the price charged by the plaintiffs, is not an admission of the price charged by the plaintiffs to be correct. But supposing that this should be no proof in favor of the plaintiffs to establish the price at which the flour was sold, is not the testimony of Dutillet and M’Clelland abundantly satisfactory to fix that price ? Because it cannot be reasonably supposed, that the plaintiffs, when flour was in demand at from 13, 13½ to 14 dollars of the same description, would have sold it to the defendant under the market price, or if they had not previously sold the flour to the defendant, that they would have kept it on hand for the defendant, when they could have sold it for the same or perhaps a higher price. It is not even probable that any man would thus act.
    Suppose the flour had been taken away by the defendant, and there was no other evidence of the price, than exhibited in the present suit, to with that flour, at the time it was sold to the defendant, of the same quality as that sold to the defendant, commanded, with facility, 13, to 13 1-2 dollars, and even 14 dollars per barrel, would not this evidence have been abundantly sufficient to entitle the plaintiff to recover ? If such evidence would not be satisfactory, in what situation is the merchant placed, for it cannot be supposed that he can have at his elbow, in every sale he makes, a witness not only to the sale but price ? It would be naturally and certainly reasonable to suppose, that the merchant proving the sale of a particular thing, notwithstanding he could prove no price agreed upon, should be entitled to recover the current price of the thing at the time it was sold. And this from necessity, because, one half of the bargains that take place in the mercantile world, are made between the vendor and vendee, without witnesses. And because, it is not to be supposed, that, an article would be sold under the current price it commanded in the market. And this is the rule adopted in practice in this state. If A., sues B. on a bill of parcels for goods sold and delivered to him at a particular price, what evidence, under the practice of our courts, would be required of A. to recover of B. ? Proof that he sold the goods to B. and that the goods are changed at the current price ; because, I repeat, it cannot be supposed, that an individual would sell his property under the current price. If he does so, it must be for the vendee to show it.
    It is, therefore, confidently asserted, that the evidence in this case, established beyond questing the sale of the thing in question and the price.
    II. Had the plaintiffs a right to sell the flour on account of the defendant, and charge him with the loss on the resale ?
    This is a question of law, arising upon the facts of the case, and thought to be too plain to require an argument. The plaintiffs required the defendant to remove the flour, or they would sell it at auction, on his account, and charge him with any balance that might result from such resale. The defendant neglected to remove the flour, the plaintiffs advertised the flour,sold it at auction, and charged the defendant with the balance, for which this suit is brought ; that, he had a right to do so, see 5 Part. 5, 24. Curia Phili, Venta, 46, 49. 5 John. R 395 to 406,4 Esp. 251.
    
      Livingston, for the defendant.
    The petition states a sale of 100 barrels of flour, half fine and half superfine, at 13 dollars per barrel, but declares that the object sold was not delivered, but was ready for delivery ; and that there was a special agreement on the part of the sellers, that they would suffer the flour to remain a few weeks in their store ; on the part purchaser, that he would pay a part of the price, after the purchase, and the residue when it should be removed, and that he would remove the said flour within weeks. This is the contract ; the breach assigned is that the defendant refused to remove the flour and to pay for the same.
    Here is a special contract set forth ; first, on the sale, it is 100 barrels of flour, one half fine, one half superfine, for a certain price, 13 dollars per barrel. This then must be specially proven ; here is no statement of a quantum valebant, the plaintiffs have chosen to rely on a positive contract for a particular thing at a certain price ; they must prove their allegation or they fail. What is the proof ? The deposition of Dutillet. He does not pretend to have been present at the contract. The plaintiffs, indeed, told him, that they had sold the defendant 100 barrels of flour. I need not surely request the court to reject this part of the testimony ; but even the plaintiffs did not tell him the price, nor did they speak to him of the description, one half fine the other superfine : on the contrary, they tell him to keep the 100 barrels out of one parcel such as they had sold Liddle. The only part of this testimony that can bear on the case, is the conversation that took place between the witness and the deponent, in the beginning of June. He says, he then “ went with a note from the plaintiffs, requesting him to send by the deponent the sum of six hundred and fifty dollars, on account of the 100 barrels of flour before spoken of, and that the same was at his disposal in the warehouse of Gilly and Prior ;” that the defendant read the note, and said he could not pay it, but would pay it the week following. This is the whole testimony, for the other witness, M‘Clellan, only speaks of what he heard from the plaintiffs. Dutillet then knows nothing of the price, nothing of the terms of payment, and only testifies that the defendant, on being asked for the 650 dollars, on account of the 100 barrels of flour, said he could not pay then, but would pay in a short time. Now this reply is quite consistent with an inchoate as with a perfect purchase and sale. Suppose Gilly and Prior had offered the defendant 100 barrels of flour, on condition that he would pay them 650 dollars in cash, and the same other sum at a subsequent period, and that the defendant had only said, “ if I like the flour, on further examination, I will take it,” or “ if I find it convenient to raise the money I will take ;” and they had sent him a note requesting the payment of the six hundred and fifty dollars and telling him that the flour was at his disposal.” Might he not have made precisely the answer the witness states him to have made, and yet not have intended to conclude the bargain, further than he had done in the original conversation, that is to say, leaving it still conditional, that if he paid the money it should be a sale, but not otherwise. “ I cannot pay this week, but I will the next ;” if I do there is a sale, if not, I make no new contract. Now, if the evidence will admit of these two constructions, that most in favor of the defendant shall be taken ; for the plaintiff must make out his case. But independent of this, the strong ground is that this testimony does not support the allegation in the petition ; there is not the slightest evidence either of the description of the goods, or of the price or of the terms of payment.
    The allegation, relative to the agreement which is stated as forming part of the sale, that the plaintiffs would suffer the flour to remain a few weeks, and that the defendant would take it away in any given time, is totally unsupported by any evidence.
    The allegation is, that the defendant promised to remove the flour in —— weeks. How many, twenty, thirty or an hundred ? There is no evidence to supply this blank, the defendant may fill it as he pleases, and if he inserts the word ten, the plaintiff has no cause of action ; for the flour was sold in less than that time from the day of the pretended sale.
   Martin, J.

delivered the opinion of the court. The question of fact appears to us to have been correctly decided in the parish court. The plaintiffs have clearly shewn, by the testimony of Dutillet, and that of M‘Clellan, that they sold one hundred barrels of flour to the defendant ; and that flour of the quality sold was then worth 13 dollars per barrel. The defendant, on recceiving the plaintiffs’ note, by the hands of Dutillet, in which 650 dollars were demanded, as a part of the price of the 400 barrel's of flour sold, but not yet delivered, to have excused himself, and promised payment in the course of the week then following. This is clearly sufficient evidence, that a purchase of one hundred barrels of flour had taken place and the defendant drew from the witness, in the cross examination, the fact that M'Gowan, another clerk of the plaintiffs, who was out of the reach of the process of the court at the time of the trial, had made an entry of the sale, in the plaintiffs’ books. * Although the testimony shews a marked intention in the defendant, to avoid paying the plaintiffs, it does not appear, from any part of the record, that his counsel, in the parish court, complained ofan overcharge.

It is true, there is no evidence of the defendant having expressly agreed to pay 13 dollars per barrel, but it is shewn that this was the fair and current price. The defendant has not objected to evidence, of the current price being received, and it does not appear, that any question was raised in the parish court on this head.

According to the mode of practice, in courts of common law, the plaintiff who expects to avail himself, in case of his inability to prove the contract as it was really made, of the obligation which the law raises in the vendee, to pay the fair price of the thing must have a count in his declaration, stating that the defendant promised to pay what the goods were worth, quantum valebant. In courts, in which the practice of the civil law prevails, the plaintiff does not produce his case in various forms, and evidence is admitted, when in supports the allegation in substance.

Here the petition states, that the defendant owes to the plaintiffs 1300 dollars, because they sold him 100 barrels of flour, at 13 dollars. Now, evidence that the defendant purchased from the plaintiffs 100 barrels of flour, which were really bona fide worth 13 dollars per barrel, substantially and perhaps literally, supports this allegation : if there be no evidence of a positive agreement at a specific price. If the defendant purchased flour, which was worth thirteen dollars per barrel, without any specific price being agreed upon, he impliedly purchased it at thirteen dollars.

That 1300 dollars were the amount of the flour, according to the intention of the parties, is corroborated by the circumstance, that part of the flour was to be paid in a few days, and the rest when it was taken away, in a few weeks ; and the defendant, when in a few days after, he was called on for 650 dollars, expressed no dissatisfaction at the demand. On such a contract, the parts mentioned, not being defined, equal ones must be presumed to have been intended. If, therefore, the flour was sold at 13 dollars, the sum of 650 dollars claimed, as the first part of the amount, must be that which should be called for.

It is next objected, that the number of weeks, after which the last payment was to be made, is undefined—a few weeks. This mode of speaking is seldom used to denote a longer period than eight weeks, or fifty six days. The next period is usually described by the words sixty, ninety, or one hundred and twenty days—two, three, four or six months.

Upon the whole, we think, that the parish judge correctly decided the question of fact. But we think he erred in that of law.

We have in a case like this, a statute provision. Part. 5, 5, 24. When the vendee refuses to come and take away the goods, and the vendor has occasion for the vessels, in which they are contained, he has a right to hire others, and if none are to be had, after notice to the vendor, he may, after a reasonable time, let the liquor run in the street, or sell it to another.

Habiendo la dicha morao tardanza en el comprador, puede el vendedor vender las mercaderias para sacar su pago del precio y cobrar lo (que se. perde de el en ellas, del comprador. Cur. Phil. Venta, 49, Cur. Phil. ill. Venta, 46.

So it is in England. In the case of Martin vs. Addock, 4 Esp. 251 lord Ellenborough decided that the vendor might recover the loss or difference of price arising on a resale, as well as damages for not taking away the goods, and that it was no objection to his recovery, on the general count for goods sold and delivered, that he had not the goods then ready to deliver.

Similar decisions have taken place, in New-York. Hermanes & al. vs. Yeomans, 5 Johnson, 406. Sands & al. vs. Taylor & al. id. 395.

The court there observed that after the defendants’ refusal, to come and take away the property (wheat) it was thrown on the plaintiffs’ hands, and they were, by necessity, made the defendants’ trustees to manage it ; and being thus constituted trustees or agents, for the defendants, they must either abandon the property to destruction, by refusing to have any concern with it, or take a course more for the advantage of the defendants, by selling it. There is a strong analogy between this case, and that of the assured in the case of abandonment. In both cases, the party, in possession, is to be considered as an agent of the other party from necessity, and his exercise of the right to sell ought not to be viewed, as a waiver of his rights on the contract. This rule operates justly, as respects both parties : for the reason, which induced the one party to refuse the acceptance of the property, will induce the other to act fairly, and sell it to the best advantage. It is a much fitter rule, than to require it of the party, on whom the possession of the thing is thrown against his will, and contrary to the duty of the other party, to suffer the property to perish, as a condition on which his right to damages is to depend.

Where a merchant orders goods from abroad, and they do not correspond with the order, he sells them, as the agent, and for the account of the shipper.

The parish court thought that the plaintiffs, in the case under consideration, might have prayed for a sequestration of the property, and, on shewing it to be perishable, have obtained an order for the sale of it. In many cases, especially in that of an absent defendant, the delay and expences attending this mode of seeking relief would leave but little to satisfy the claim of the vendor. We are of opinion that the parish court erred.

It is, therefore, ordered, adjudged and decreed, that its judged be annulled, avoided and reversed and that the plaintiffs recover from the defendant, the sum of $903 66, with costs in both courts.  