Williams v. Woods

Eccleston, J., delivered the opinion of this court: At the trial of this cause, the plaintiffs offered five prayers; the 2nd, 3rd and 5th, were granted without alteration, and the 1st and 4th were modified, by the court, and then granted. The defendant offered six prayers, ail of which were refused. The judgment was rendered for the plaintiffs upon a verdict in their favor, and the defendant appealed. One bill of exceptions contains all the evidence and all the prayers.

The plaintiffs examined A. A. White as a witness, who gave evidence tending to prove that White & Elder, as partners, were engaged in the business of merchandise brokers, and in the sale of merchandise on commission. That White as a member of said firm, and under authority from William Howell & Son, made the sale of coffee now in dispute. ²⁴⁷ That White then ordered R. W. Hall, the clerk of White & Elder, to make an entry of the sale in the blotter of the firm, as said firm usually did in their blotter. That the entry was accordingly made by Hall, in part, and afterwards completed by White; which entry is as follows: «1853, Augt. 26. Win, Howell & Son.

Woods, J3. & Co. G W C. W , 1244 bags Rio coffee. Paper to be satislactory to the sellers. 26 42 27 62 24 70 €0 58 72 85 38 39 43 68 101 30 95 34 26 60 52 36 56 60 1244 9 The said White, also testified that all of this entry is in the handwriting of Hall, except the figures “9f,” and the words “paper to be satisfactory to the sellers;” which excepted figures and words are in the handwriting of the witness, who further stated, on cross examination, that he stood at the table by Hall, while Hall made the entries. The plaintiffs, in their first prayer, insist that “the said ■entry is a sufficient note or 'memorandum, in writing, of a contract, to bind the defendant in this action.” The correctness of this proposition is denied by the appellant, for the reason that, if the memorandum was signed.at all, it was signed, not by a broker, but by a broker’s clerk, who had no authority to do so, the latter acting as sub-agent, only, of the former, who was but an agent himself, in a transaction or business, which prohibited any delegation of his authority to a sub-agent. But the appellees consider the memorandum equally as valid and binding as if it had been prepared and signed by White himself; because it was written and signed, in the blotter or sales-book of White & Elder, by Hall, their ²⁴⁸ clerk, under the direction of White, he standing by the table Avhilst Hall made the entry, so far as it was made by him.

Apart from all other objections urged by the appellant to the appellees’ first prayer, supposing White & Elder had authority to make sale of the coflfee, and did make a sale thereof, and that the terms of said sale are correctly and sufficiently set forth in the entry or memorandum on the blotter of White & Elder, we propose, in the first place, to inquire whether the entry or memorandum is a valid and binding entry or memorandum of the sale, notwithstanding it is all in the handwriting of Hall, their clerk, except the figures “9f,” and the words, “paper to be satisfactory to the sellers,” which are in the handwriting of White? This inquiry presents the legal question, argued before us by counsel, whether a broker, having made a contract of sale, can authorise his clerk to wake and sign an entry or memorandum thereof, under his direction and in his presence, so as to bind the parties named in the contract ? This question does not seem to have been conclusively settled. Whilst there are authorities which may be considered as favoring the doctrine that although a broker may, as an agent, make and sign a valid contract, for his principal, yet his agency is such that no portion thereof, under any circumstances, can be delegated to his clerk, there are others which speak of it as an open question, and others, again, seem to sustain the authority of the clerk to reduce the contract to writing, and sign the same, where he exercises no discretion, but merely acts ministerially or mechanically, under the direction and supervision of his employer, the broker.

As authorities of the first class, reference is generally made to Blore vs. Sutton, 3 Merivale, 237, and Henderson vs. Barne wall, 1 Younge & Jervis, 387. In Browne on Stat. of Frauds, sec. 369, after stating the authority of an auctioneer’s clerk to write down the name of the buyer, under his principal’s direction, the author says: “It has been decided that the rule did not embrace the clerk of a broker.” The decision referred to in this note is Henderson vs. Barnewall. And the writer adds: “But even this ²⁴⁹ seems now to be open to question.” As authority for saying which, he cites Townend vs. Drakeford, 1 Carr. Kino., 20.

In Story on Agency, sec. 13, the learned writer treats of the ‘‘Delegation oe Agency. ’’ He there states that a factor cannot ordinarily delegate his employment, as such, to another; after which he says: “The same rule applies to a broker; for he cannot delegate his authority to another to sign a contract in behalf of his principal, without the assent of the latter. The reason is plain; for, in each of these cases, there is an exclusive personal trust and confidence reposed in the particular party. And hence is derived the maxim of the common law: delegata potestas-non potest delegari.’’ This is but the enunciation of the general rule, that, ordinarily, a broker cannot, delegate his authority. For the principle just stated is, that a “factor cannot, ordinarily, delegate his employment,” and then it is said, “the same rule applies to a broker.” In addition to which, the reason for the rule as stated, is, because there is an exclusive personal trust and confidence reposed in the broker.

Surely the reason of the rule cannot be applicable where the broker stands by whilst the clerk signs the contract, under his direction, leaving no act of discretion for the clerk to perform. The propriety of permitting an agent to perform a mere ministerial or mechanical act, by a sub-agent or deputy, even where he could not delegate any portion of his authority, requiring the exercise of the least discretion, is well considered, in the opinion of the Supreme Court of New York, delivered by Mr. Justice Cowen, in Com. Bank of Lake Erie vs. Norton, 1 Hill, 504 . And there the cases of Blore vs. Sultan and Henderson vs. Barnewall are referred to.

The court quote the language of Lord Ellenborough in Mason vs. Joseph, (1 Smith’s Rep., 406,) when speaking of an agent in relation to a mere ministerial act, he says: “Suppose, for instance, he had got the gout in his hands, and could not actually sign himself, he might have authorized another to sign for him.” In Parsons’ Mercantile Law, 155, Note 7, many authori ²⁵⁰ ties are cited in relation to the power of an agent to appoint a sub-agent, and then it is said: “A broker cannot delegate his authority.” “Nor can a factor.”, After stating each of these propositions, the writer cites authorities, and then says: “But the power to perform a merely ministerial act, involving the exercise of no discretion, may be delegated.” Then he refers to Mason vs. Joseph, 1 Smith, 406 , per Lord Ellen-borough; Commercial Bank of Lake Erie vs. Norton, 1 Hill, 501 , and other cases. In 1 American Lead. Cases, 589, (Ed. of 1857,) the principle is recognized, that a merely ministerial or mechanical act may be done by a sub-delegate. And the above mentioned case, in 1 Hill, is there referred to.

After mature reflection we are not prepared to sustain the objection to the appellees’ first prayer, urged by the appellant, upon the ground that the entry or memorandum is invalid, because it was chiefly prepared and signed by Hall, the clerk. The prayer submits to the jury the inquiry, whether the entry, so far as Hall participated therein, was made by him, under the order of White, and in his presence, also whether the other portion thereof was completed by White. And there is evidence tending to prove such facts. Believing that, under such circumstances, the clerk should not be considered as performing an act of delegated authority, requiring the exercise of any discretion, but merely a ministerial act, under the order and in the presence of White, as one of the firm of White & Elder, the appellant’s objection to the prayer is not, in our opinion, a valid objection.

The appellant says this prayer is erroneous, because the proviso therein requires the jury to find the “established custom and usage of merchants in the city of Baltimore,” without pointing to, or specifying any particular custom or usage, when the testimony speaks of usages which relate to several points in controversy, in regard to the disputed contract; and also because the proviso authorizes the jury, without the aid of the court, upon their own views of the custom and usage which they may find, and the other proof in the cause, in connection with the entry, to decide whether the entry, ²⁵¹ “either expressly or according to the sense and signification of its language and figures,” did represent, “truly and fully the terms of, and parties to, the contract of sale.” It is a well settled general rule that written instruments are to be construed by the court, alone, according to the meaning of the language therein employed, without the aid of parol proof to explain the meaning and intention of the parties thereto. If, however, in the case of a mercantile contract, “the instrument be not clear and unequivocal, evidence of the usage or course of trade at the place where the contract is to be carried into effect, is admissible to explain the meaning and remove the doubt.” 2 Kent's Com., 556, {5th Ed.) A note or memorandum of a contract came before the Supreme Court, in the case of Salmon Falls Manufacturing Co. vs. Goddard, 14 How. Rep., 454. There, after stating what the Statute of Frauds requires to constitute a valid note or memorandum of a bargain, the court say: “This brief note of the contract, however, like all other mercantile contracts, is subject to explanation by reference to the usage and custom of the trade, with a view to get at the true meaning of the parties.” And again: “Although specific and express provisions will control the usage, and exclude any such explanation, yet, if the terms are technical, or equivocal on the face of the instrument, or made so by reference to extraneous circumstances, parol evidence of the usage and practice in the trade, is admissible to explain the meaning.” See, also, Browne on Statute of Frauds, sec. 380.

Whilst the above authorities show that in a mercantile transaction, when the terms of a written instrument are technical, or equivocal on its face, or are made so by reference to extraneous circumstances, parol evidence of the usage and practice in the trade, is admissible to explain their meaning, the principle applicable to such a case is, that the evidence of usage, and the surrounding circumstances, in explanation and illustration, is for the consideration of the jury, the province of the court being, to instruct them, conditionally or hypothetically, what should be the proper construction or interpretation of the written instrument, as they may find the evi ²⁵² dence either to support or not to sustain the purpose for which it has been offered. This view, we think, is sustained by Eaton vs. Smith, 20 Pick., 156 , and Neilson vs. Harford, 8 Mees. & Welsby, 823. See, also, Morrell vs. Frith, 3 Mees, & Wels., 406. In Eaton vs. Smith, C. J. Shaw, in delivering the opinion of the court, says: “When a new and unusual word is used in a contract, or when a word is used in a technical or pecu- - liar sense, as applicable to any trade or branch of business, or to any particular class of people, it is proper to receive evidence of usage, to explain and illustrate it, and that evidence is to be considered by the jury; and the province of the court will then be, to instruct the jury what will be the legal effect of the contract or instrument, as they shall find the meaning of the word, modified or explained by the usage.” Speaking for the court, in Neilson vs. Harford, Baron Parke says-: “Then we come to the question itself, which depends on the proper construction to be put on the specification.

It was contended that of this construction the jury were to judge. We are clearly of a different opinion. The construction of all written instruments belongs to the court alone, whose duty it is to construe all such instruments, as soon as the true meaning of the words in which they are couched, and the surrounding circumstances, if any, have been ascertained as facts by the jury; and it is the duty of the jury to take the construction from the court, either absolutely, if there be no words to be construed as words of art, or phrases used in commerce, and no surrounding circumstances to be ascertained; or conditionally, when those words or circumstances are necessarily referred to them. Unless this were so, there would be no certainty in the law; for a misconstruction by the court is the proper subject, by means of a bill of exceptions, of redress in a court of error; but a misconstruction by the jury cannot be set right, at all, effectually.” Without any construction of the entry given by the court, either absolute or conditional, the proviso in the prayer as granted, instructed the jury to inquire and to determine, themselves, whether the entry represented truly and fully the ²⁵³ terms of, and parties to, the contract of sale.

They were to ascertain whether the entry did this, “either expressly, or according to the sense and signification of its language and figures, under the established custom and usage of merchants, in the city of Baltimore, at the time — if they should find such custom and usage — and the other proof in the cause.” This was submitting to the jury, not merely to ascertain the meaning of technical, or equivocal terms, words and figures, or phrases used in trade, according to the usage of trade, but it authorized the jury to ascertain the terms of the verbal contract, also to ascertain by their own interpretation of the entry, whether it expressly represented truly and fully, the terms of the said verbal contract, and if not expressly, whether, according to their interpretation of the sense and signification of the language and figures of the entry as ascertained by the aid of such custom and usage as they might find, and the other proof in the cause, the entry corresponded with the contract as made and truly and fully represented the terms thereof. Tn