
    Fitch v. Kennard.
    (New York Common Pleas
    General Term,
    December, 1892.)
    Pending an offer made on March eighteenth, in Chicago, for the sale of a car load of eggs by a seller to an intending buyer, the seller represented that the eggs were then in car, and would be shipped that evening so as to be delivered in New York in due time; and upon the faith of such assurance plaintiff bought and paid for the eggs. The shipment was not made until March nineteenth. In an action to recover damages for breach of contract, held, that defendants were liable.
    The contract of sale and purchase was made by one D., an employee of the firm of brokers who negotiated the sale. When defendant and other witnesses were asked to give the conversation at the time of the making of the contract between defendants and D., the evidence was rejected on the ground that D. was defendants’ agent, and that they were concluded by his testimony. Held, that assuming that he was defendants’ agent, although the undisputed evidence showed that he was plaintiffs’ agent, defendants had a right to contradict D.’s version of the transaction, and the exclusion of the evidence was error calling for reversal.
    Appeal from judgment of the General Term of the City Court affirming a judgment on a verdict. The opinion states the case.
    
      Abraham Gruber, for defendants (appellants).
    
      J. George Flmnmer, for plaintiffs (respondents).
   Pbyob, J.

The action is for damages from breach of an alleged contract by defendants to ship a cargo of eggs in Chicago, on the night of the 18th of March, 1891, to the plaintiffs in Row York. The shipment was not made until the nineteenth of March.

The single question in controversy is: Did the defendants agree to ship the eggs on the night of the eighteenth of March ?

By the plaintiffs’ own evidence it appears that the broker negotiated the sale on the eighteenth of March and consummated it on the nineteenth. Indeed, it is not apparent how the sale could have been made on the eighteenth, seeing that it was not until the nineteenth that the plaintiffs gave the broker authority to accept the defendants’ offer, i. e., to buy ; and that it was not until the nineteenth that he communicated his authority to the defendants, the sellers. The “ purchase ticket,” i. 6., the contract of sale, executed by the broker and given to the defendants, was not so executed and delivered until the nineteenth. Assuming, then, an agreement to ship on the eighteenth, that agreement was necessarily provisional, and dependent on the consummation of the sale; and since the sale was not, in fact, consummated till the nineteenth, without more, there could have been no binding agreement to ship on the eighteenth. Suppose that after the negotiation on the eighteenth, and the then agreement to ship that night, the sale had gone off, would the plaintiffs have had a claim of damages against the defendants for failure to ship on the eighteenth ? After the miscarriage of the sale, plaintiffs could have had no right to the possession of the eggs, and defendants could have been under no obligation to ship on the eighteenth or at any other time. Whatever understanding,” therefore, may have existed between the parties to ship on the eighteenth, was necessarily canceled by the failure to consummate the sale until the nineteenth.

But upon all the evidence the case presents another aspect and warrants a different conclusion.

The broker testifies in behalf of the plaintiffs that the defendants represented that the eggs would be shipped that evening (the eighteenth), “ whether we bought or not,” and that he consummated the sale on the nineteenth, “ with the understanding that the car was then in transit.” The case, then, is this: Pending defendants’ offer to the intending buyers, they represented that the eggs were then in car, and would be shipped that evening (the eighteenth of March), so as to be delivered in New York “ in due time,” and upon the faith of that assurance the plaintiffs bought and paid for the eggs. We are of opinion that the representation so replied and acted on constitutes an agreement, for infraction of which the defendants there are responsible in damages to the plaintiffs. Hawkins v. Pemberton, 51 N. Y. 198.

But appellants impeach the judgment for error as well in the exclusion as in the admission of evidence.

The contract of sale and purchase was negotiated by Davis & Company, of whom one Dodd was an employee, and who, in fact, made the contract. The issue in the case, we repeat, was whether the defendants agreed to ship the eggs on the eighteenth, and surely, under their denial, they were at liberty to controvert the evidence of the plaintiff's and disprove the alleged agreement. Nevertheless, when the defendant Kennard and other witnesses were asked to give the conversation at the time of the contract of sale between the defendants and Dodd, the evidence was rejected, and upon the ground that Dodd was the agent of the defendants, and that so they were concluded by liis testimony. It is our opinion that on the undisputed evidence, Dodd was the broker of the plaintiffs and that the defendants negotiated with him for themselves, but assume otherwise, and still it is clear to demonstration that defendants had a right to contradict Dodd’s version of the transaction. If the broker of the defendants they were not bound by his testimony, nay, not even had he appeared as their witness. The law is not so unjust as to sacrifice a principal to the perjury of his agent, when the principal has in his hands the means of exposing the perjury. It will not avail on an appeal, as thought the G-eneral Term of the court below, to argue that the questions were too general, or that the offer was to show an inconsistent statement by Dodd without affording him a previous opportunity of explanation.

The-exclusion of the evidence in the ¿rial court went upon the sole and specific ground that Dodd was defendants’ agent to sell, and upon that ground the evidence must stand or fall in this appellate tribunal, unless the evidence was in no aspect of the case competent, or could not be made so.” Briggs v. Wheeler, 16 Hun, 583 (directly in point) and Tooley v. Bacon, 70 N. Y. 34, 37. We may add, that the questions could not have been made more definite without leading the witnesses, and that were the objection proper the ruling could not be sustained upon the authority of Stracy v. Graham, 14 N. Y. 492, an adjudication in no respect applicable to the point in discussion.

Respondents answer that the contract of sale was in writing, and so was not open to parol contradiction. The purchase ticket” did probably constitute a contract of sale, but it was not produced or proved in evidence. The telegram of Davis only communicated the offer of defendants to sell a carload of eggs, accompanied with the statement of Davis that they “ leave to-night.” The bill of lading acknowledged the receipt of the eggs and expressed the terms upon which they were to be carried, but contained no agreement of sale between the sellers and the buyers. We fail to.find in the record any written contract of sale.

We incline to the opinion that the court below erred also in the admission of evidence, but we forbear discussion of other exceptions, since the one sustained requires a reversal of the judgment.

Judgment reversed, and a new trial ordered, costs to abide the event.

Daly, Oh. J., and Bischoff, J., concur.

Judgment reversed, new trial ordered, costs to abide event.  