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s; ,tqtal shlplI1ent; not under l1 er does not' Mlthollze the illd sell parts of tlleshipllient of', B'Verage qualtty; M or 'above: the lIlI1it; and! thiIl thrQwthe part unsold upon ,the han'ds of the tos.e11 !>!16 lot, or. a,.t to ,the whole In snch manner as 'to realtze the prlce,brolted for, the whole lot. . '.d:··':.l;: ; r, :-:'.:'Il 0,,: 'c<,:;r--: '" "', '. ';

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9. 8.uf.....Exc}llEDtNG AUTRO'itITY..;;..Lu,;rULI'1'Y'I'O 'CONSIGNOR.
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A;consignee 0,£ of, qualities is, , the wh\?le in one 10'. at ahm,iteli price per ton, seUsa 'part of , 'at a pi'iQe above'tbll' litnit, but does not sell the 'remaitidet," acedunt'to the consignol' for the whole at the price limited..

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At Law. ,Action against A. Balfour and others. FO'.c <to, .Kel1xJgg,rfor plaintiff. ' ,I' I ,Page for defendants. ' , Before SA:WYER, Circuit Judge."

·SAmER:,'J'. ,PriortoJuly 30;,1885j'LeonBlum' :had a: shipment of three qualities :,of n"lothet-of-pearl shells, amounting in the aggregate ,to 25 tons and a fraction, in the handsof·the defendants'Liverpool agents for sale. He transferred the shells to plaintiff, and on JUly 30th notified defendants 'Of.the fact. He introducatl plaintiff to Mr,Bruce, one oithe defendantB,anda verba:l arrangement was made between Mr. Bruce,on whalf of the defendants, and plaintiff, to continue theIll in: defendants' hands' for sale \lnti! theyHwere otherwise disposed of. In the language Of the plaintiff, they were to be sold at "eighty-five ponnds sterling per ton for the tota:lconsignment" ,Plaintiff: also used the word "telquel," signifying"asis." In the language of }Ir.Bruce, defendants were authorized "to sell the total shipment not under eighty..five pounds per ton," and these statements are corroborated by two other witmisses,Blum and Marshal, who were present. ,Mr. Bruce made a pencil memorandum of a dispatch to be: sent to hill Liver'pool house, arid p'romised to send Mr. Levison a <copy of his dispatch.' Accordingly a; letter dated on that day was immediately sent by defendants to plaintiff, in which they inclosed copy of inv()iceand, othe:r papers ':relating to the matter, and said ,among other things: "As requested by you, we will cable our Liverpool friends as follows: 'Blum shells, total shipment, arrange at not under £85.' By mail we shall advise Messrs. Balfour, Williamson & Co. that Mr. Blum has transfened the entire shipment to you, and if unsold they will, when called upon, deliver the same to your order on payment of freight and all charges which have been incurred at Liverpool. It is understood that if our friends sell the shells they will charge the usual commission of 21 per cent., exclusive of brokerage, on the gross amount, in which case you will receive credit for commissions now charged by us on the amount

v.

BALFOUR.

8Sa.

origillally advanced to'Mr. Blum, and which hast,his day been paid,"the amount so advanced ,being 87 ,000. on .that afternoOIl sent to. their Liverpool as follows:. t Blum shells per Bell Rock. Total shipment. Arrange at not under 85 pounds per ton." On date, defendants notified plaintiff of a Septemher, 28tll, by letter of sale of four;tOqB of the shells, made up parts of different ". Tlle parts sold frQm the qualities of shells in such to lea.ve the average quality. a little higher than, or at least J;:dgh. as, the, portion sold. The. Iilhells sold for :10 per ton. no charge. of commissions. They and in their .letter add: "And we trust same will be satisfactory." The plaintiff promptly replied to defendants' said report by which he says: . "In reply tl,>yoprs of 28th instant, I beg to say,.that. the authority to seU e,x · total shipment,' only, and not in lots. 1 reject the advice to Dle of ,the 28th instant. I am compelled to hold to original, terms, referring .to your letttlr of July 50, 1885, quoting £85 for the totalliliipment." .. . , the defend'ants repl,ied by letter of same date: ....'We 'are lIlreci!ipt Of your fl1yoT o date, and regret you do not' f ,!ilJlng to' approve of our friends'small sale of shells ex Bell Rock. TheIr !l.dvlCes state tbatthli fonr tons would be made up of proportionable quantities of the threelots, :lllld as thei.r buyer ·hM 'good hopes of plaoingthe remainder, they were induced. to make the sale. We consider our friends acted entirelyfot your interest, and on t,heir behal,f we decline to view the matter in any other light. As ,it hOW8v.er does Dot appear that Ollr fri ends, are likely to give satiswe will.thank you to instruct your agent to take delivery of the 4ubject t11 payment of charges which have accrued thereOn-and as we sllall also requeSt Measrs. Balfour, Williamson & Co. to take no further steps to sell them." ' "On·the'SRIll.e date,·September'30th. defendants serit plaintiff a note as follows: . " ." ' " " ,- ,: l ' . ' : " ,",' . . . ; . . . "'Referring wour letter of even date, we now hand you order on our Liverpool house for the delivery of the' balance of the shipment of pearl shells pet Bell RoCk, and inclosed with It an order dated September 80, 1885, addressed to Messrs. BalfQl1r, WiUiamson& Co., Liverpool, as follows: ·PleaBl." deli vel' to the order ofWm. H. Ulvison,San Francisco, the balance of the shipment pearl shells per Bell Rock (ss) on payment of all charges which have crued thereon.' . . . . ,Plaintfffagain immediately confirmed his former letter, repudiated said sales, retumep ·the,ord-er for balance, of shells, demanded a delivery of the of f.!hells l jand offered to pay all charges against the saDle UPoll;/Juchdelivery, but refused to receive the said shells remaining after said or less than tJ:1ElWhole lot. The defendants, being unable to, lot, decliijedon that ground, nnd thereupon the plaintiff, demt\n4ed pl;lyment 25 and. a fraction tons of said shells., pharges, at which defendants refused to pay this suit:wasproDlptly October 17, 1885, sq,m The of .sales furan!i: :intro4,uced in evidence. showed sales to
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884

REPORTER.

a.mount of abolltone' ton and a: half more than' the! four tons before te-: same being of ariliverage quality, and' at,' pnCe!l.abovE> the £.85 lhnit, b-crt, this latter' was uatreported' to plll:intiff till long after su:it was . .'. Upon the facts stated, theq'uestion arises whether the defendants' authorityto sellwas to a'sale of thewhole lot', at a single sale, or whether they were autho*ed t(fsell in small lots when opportunity occurred, proVided the were of an average quality, and not sold oelow the'limit of £85'per ton. The terms of the final contract must be expressed'iin.'defendants' letter ofJUly '30,1885, wherein they give 'the iristructidnsas' telegraphed to their Q(n'respondents in Liverpobl, viz.:'''Blum's shells; total shipment; arrange at not under £85." These are the terms of the cohtractas finally expressed in writing by defendants the;mselves,whichwere accepted by plaintiff by acquiescing without 'opjection upon receipt of d,efendants' which he subsequelltlY,insisted to itll;S conminingJhe coritractin his letter of September 30th, respecting the sale.t4erights Mthe· ties must therefore(lepend construction of contritct as thus a of I reason,.lJ.pte 'falf of 18, th ll t the were a sale of the Eilupment In a at one sale, 9f if theY'lUlaullled, to sell in .parcels, even at higherpriQes, they assumed the risk of being unable to sell the balance at snchpricEl$ as to make a sale of 'the 'Whole cargo yield .£85 per ton. They' were not authorized to selll3malllbts, and throw theretb.afnder which 'they Were unable to 'sell back upp;ri}l1e by so ancl,Jnus,putting it out oC,heir P9wer .to the whole shipment, they rendered themselves liable to account,for the .· price limited·." the plaintiffunperstood thp.t .he whole lot, had by the contract limited' the 'authority to sen hi' one lot, or' at price call be no possible .for!UJ-!lt was thecQnsj,rp«tiop. .he put upop., jt,lll1d upon at all times. He was notajobb.errbut a wholeSale dealer, and this was manifestly:understood by'defandants. He· was· IlOt . engaged ill" selling goods in 'striallquantitiel3, but dealing in .That this was, also;'the construction:' put' upon ,the contract by defendants them., '1elves th,ere can be no doubt., )ntheir report, of sales on September '>'8th, after :stating amoul;lt· of'sales and prices without charging their -.:ommissions on the parts sold, they close tijeiiletter of advice with "we trust 'the same will besatisfaetbry."This "\V()Ulcl'seem to indicate a <lonsciousnes,s of having exceeded theirauthority, for there was no occasion for this suggestion of a desired approval, iftheysupposed they had kept within their authority. BUt' plaintiff immediately repu4iated 'the sale as being without authority, ca1lingtheir atteption to the terms bfthe authority,as expressed itltheir letter to him of July 30th. The defend.ants immediately replied, nof thatth'ey put a. different construction upon the language, but urging that th'eircorrespondents had, in their judgmellt, and iIi the judgment of'the defendants, acted, not within their
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LEVISOJ!tl

a.

BALFOUR.

885

authority, "but entirely for your [plaintiff's] interest;" that they "were induced to make the sale" as their buyer had great hopes of placing the remainder, and added that "since our friends are not likely to give you entire satisfaction, we will thank you to instruct your agents to take delivery of the shells, subject to the payment of all charges which have accrued thereon." Now, this is not the language of parties who feel con.. scious of having acted within their authority, but rather of expostulation, seeking a ratification because they had acted in good faith, believing their action, though unauthorized, to be for their principal's best interest,nnd seeking approval on that ground. There is not the merest suggestion, directly, or inferentially, that the defendants did not understand the contract precisely as the plaintiff did. And there is no intimation anywhere in the evidence that the defendants construed the contract differently from the plaintiff, till we come to their answer to the complaint. If they entertained a different view of the meaning of the contract, when they sold in lots and the sale was repudiated, they were here called upon at the time to so state, but they did nothing of the kind. Had they for a moment supposed they had acted within their authority, they would certainly have planted themselves upon this authority, in their first communication, and would never have sought to excuse themselves, and seek approval on any other grounds. It is quite apparent, therefore, I think, that both parties construed the contract alike, and that the construction now sought to be put upon it by defendants is an after-thought. . In my judgment; by selling a part, without authority, inl\tead of the whole, and thereby putting it out of their power to return the whole shipment of shells to plaintiff on his demand, the defendants rendered themselves liable to account for the whole shipment at £85 per ton. There. was an attempt to prove that by the custom of merchants. at San Francisco,·this contraot authorized a sale in parcels at or above the price limited. But this, if admissible to prove the fact, would be directly against the construction which both parties, as we have seen, themselves manifestly put upon the contract. Besides. the evidence does not satisfy, me that thereis any such recognized established custom. The precise case, as stated in the contract in writing,. waf! not stated to the several witnesses, and the evidence, when carefully analyzed, at best only shows, I think, that if the goods are sold in parcels, the whole must finally be sold so as to produce the required amount·. I do not think the evidence established the meaning of such contract to be that the consignee is authorized to sell a part of the goods at or above the limit and throw the balance back upon the hands of the owner. Upon the views I have expresf;led, the defendant must account for the shells at the rate of £85 per ton, and a recovery must be had for that sum after a deduction of commissions, brokerage, and other proper charges, upon the whole, less commissions already paid on the sum of $7,000. Of course the loss or gain to defendant. will be only the difference between the price limited and the amount foJ' which they ultimately sold the shells, which they had in their posses sion. It does not appear whether they have sold or not. An offer 01 £80 per ton for remainder appears to have been made. But upon t1"'1'\ v.34F.no.5-25

wljat the ultiqlat,ely lose or gain,. as the case amlwt certain that may be;.cannotaffectthe the evjdence furnished the meatUs ascertaining pre!thll,amount of charges to, be and consequ:entlythe amount to be If so, counsel agree upon the amount, ,and it will be the If not, I will send it t,o a .referee to lUlcertain the1?rokl'll'age apd charges. ,'l'he,contract fixed at 21 per shows commissions been paid. ,Letthere be findings and judgment in pur· sUllIlceo!this opiniop.' '
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UNION PAC. Ry. CO., (three cases.)

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Ql1ES'rlON;'

POMAm-NATuRE

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TM constitution of Colorado,' art; 15, § 4, declaring all railroads to be pub, lichlgAw:a.ys, not prevent the raising of the question as to the qf a in a, by it to condemn land; artiCle,21 § 15, providing that "whenllver an attempt IS made to take private property tor a use alleged to be pnblic.the question whether the Contemplated use be really public shall be.a question, and determined as such without regard to any legisla, tive assertion that the use is public. "
2. BA14E-PLljlA:bhm.

In proceedings an answer alleging thll,t the plainti:ff WRS organized and is, a private feu the purpOSli of constructing and oW erating.a,·railroad, witllOut averring that the railrQad itself, when built, will be a prlvateroad, is defective. 'as it is the object to which the land is to be ,devoted. and notthe party claiming the right to take land,that isrequired to be public.;
OF LAND TO Bm AOQ,umF;D-PLEADmG.

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. '. When a petition in condemnation proceedings alleges that the land sought " to be condemned il private land; held by defendant. a corporation, for other ,purpol\es thantbe b,usinessinwhiph is engaged. and the averments in the , answ;er :d.efendants' the businells in it is engaged, and 'that thelandis necessary for the purposes ofsuchbuslDess, the answer " is sufficient on demurrer. An, anllwer, to a petition tQcQndemn land, alleging that tbe articles of incor· poration Of the petitioner cOlJlpany, which are not set out either in the peti'tion or'atlS-wer, are not sufficient· to enable it to maintain its action, without specifying the particulars in wllich Such articles Bre deficient, will pe stricken : out. ,,' , ·An answel'8.verring that the petition does not state sufficient facts to consti\ute & cause, of ,action is, in e1'fect.ademurrerj, and oil motion will be out.
IN,COm'ORATION. ' ','",

lS;PLEADING-ANSwER.

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At Law. part of answer.' ,

to strike out, part of answer and demurrer to condemn Illnd by thepenver Railroad Land & Coal Union Pacific RailwayCompll-ny,