BEAL vs. M'KIERNAN, 6 La. 407

Martin, J., delivered the opinion of the court. The defendant and appellant has placed this case before us, principally on a bill of exceptions to the refusal of the first judge to instruct the jury, that a commission merchant having an order to purchase cotton, cannot apply thereto cotton of his own, nor that of another consigned to him for sale, although he does so through the interference of a broker. Instead of which instruction, the judge told the jury, that by our law, as it now stands, all persons may buy and sell, except those who are prohibited by law. Louisiana Code, 2420 et seq.

That no law in this state forbids an agent charged with the sale of /property, to buy for a third person, on the contrary, the law contemplates a double agency. Ibid, 2985,2989. The Louisiana Code lias preserved all the principles, which before its promulgation prevented a commission merchant who had an order to purchase cotton, to apply his own cotton thereto* The counsel has introduced a considerable number of authorities, to establish the converse of the proposition of the Parish Court.

On the part of the plaintiff, the correctness and weight of these authorities have not been denied; it has been simply urged, thatthe principles of law,which the counsel for the appellant invokes, if they ever were inforce in this state, are absolutely abrogated by the part of our Code, to which the judge has referred the jury. It will, therefore, suffice, in the examination of the question in controversy, to ascertain what change our late Code has introduced in the pre-existing laws. It is true, that under our Code, every person not prohibited by law, may buy and sell, so might any one before.

Our Code has preserved all the principles, which before its promulgation prevented a commission merchant, who had an order to purchase cotton, to apply his own cotton thereto. A sale is a contract. Ib. 2413. A contract is an agreement, by which one person obligates himself to another. Ib. 1754. An agreement, aggregatio mentium, one person bound to another, are of the essence of every contract, and, consequently, of every sale. Where there is but one person, there can be no agreement, no obligation; for there is not the concurrence of two minds, no one person bound to the other.

A sale is perfect as to the parties, as soon as there is an agreement on the object and the price; and the property is vested in the purchaser, although the object be not delivered nor the price paid. Ibid, 2431. Then the sale is not effected till there be an agreement. The agent, like buy^romanypere™ by law^'but from bimseif. A has an order from B to purchase cotton, and from c to sell his crop; he determines on selling C’s cotton to B.

Tim price baa been determined ouiy^tbcreAs onwomhidsfcgSítTessontiai of til’ccontract'.0'1 A directs B to buy and ship cotton, B has cotton of his „ „ J and determines to ship it. This creates no agreement nor obligation, no contract, no sale, There, has not been the concurrence of two wills, and till then B is not bound, for he has it in his power to prevent the use of the obligation, if he change his mind. The faculty in the-person hound to dissolve his obligation at pleasure, is incompatible with the existence of the obligation.

If, according to our law as it now stands, a commission merchant having an order to buy cotton, cannot apply his own thereto, it is not because he cannot buy from any person not prohibited by law, hut because he cannot buy except from another who agrees to sell; therefore, he cannot buy from himself. The Parish Court, in our opinion, erred in declining to instruct the jury, in the mode requested by the defendant’s counsel. It is contended that the charge which he substituted, was equally erroneous.

The Parish Court’s proposition is, that no law in this state forbids an agent charged to sell property, to buy it for a third person. Every argument in favor of the charge requested, militates against that which was substituted. The agent, like the principal, may indeed buy from any person (not prohibited by law), who may agree to sell, but neither .can buy from himself. Every sale to have effect, must be attended with all the requisites of the law, among these is the agreement of two persons on the object and the price.

A1 in i-». i ,, in rv , A has an order írom to purchase cotton, and irom O to _ sell his crop; he determines on selling 0?s cotton to i>. x ° The price has been determined by one person only; there is * jíj' that concurrence of two minds; aggregatio mentium is essential to the formation of the contract. The Parish Court has believed, that its proposition can be supported by what our Code calls a double agency. Brokers are not like commission merchants to buy or sell, or to lend or borrow money, but simply to procure sales or loans.

They negocíate bargains, carry communications to and from the parties respectively, and they or their a gents conclude the bargains. In the third

chapter of the title of the Contract of Mandate, the Code professedly speaks of the mandatary, or agent of both parties. This person is the broker or intermediary, who is employed to negocíate a matter between two persons, and who, for that reason, is considered as the mandatary of both, 2985. They are not answerable, except in case of fraud, for the insolvency of those for whom they procure sales or loans, 2988. They are not like commission merchants or bankers, to buy or sell, or to lend or borrow money, but simply, in the language of our Code, to procure sales or loans.

They aver fidelity to both parties, and must favor neither more than the other, 2987. They are not like the commission merchants, who effect sales and purchases; nor like bankers, who lend or place money. We have an example of this distinction in the present case. The plaintiff, as commission merchant, was employed by the defendant to effect a purchase, and he employed a broker to go in the market and procure a vendor. The broker negociates the bargain, he carries communications to and from the parties respectively, and they or their agent, conclude the bargain.

The auctioneer, it is contended, is a double agent, and acts for both parties. That he is the agent of the vendor, cannot be denied, for it is in that capacity that he receives the last and highest bid. The sale is effected by the agreement of both parties, the assent of the owner to the proposition or offer of the bidder. It is not only in a legal but also in a moral point of view, that the application of one’s cotton, or that of others which he has to sell, to an order to purchase, is to be reprobated.

The person who gives the order, expects that in consideration of the commission with which he is charged, he has acquired a right to the faithful services of the commission merchant, whose best skill and industry are to be exerted in procuring a purchase at the lowest price in the market.

If the latter uses his own cotton and place it at the medium price, the commission is improperly charged, for it requires much less labor to fix this medium price than to search for the best article, seek such purchasers whose neCessity to sell, may compel to accept the lowest price of the market; and suspicion will always exist, that the price which is charged by the owner, is not that which is the most advantageous to the purchaser. order,^with cotton sell, assumes in- ’ The commission merchant who undertakes to fill an order with cotton, which he has to sell, assumes inconsistent duties, He has engaged to the planter to afford him the benefit of his utmost skill, experience and industry, in choosing a proper moment to sell, in selecting the safest vendee, and obtaining the very highest price.

For all this he expects a pecuniary compensation. He next has a similar reward from another person; engages to the latter that he shall have the benefit of the same skill, experience and industry, to defeat the expectations of the planter; that is to say, to dispose of the cotton when the price is at the lowest ebb, and for the very lowest price in the market. It is impossible that a commission merchant who has bound himself under such incompatible obligations, can do justice to either of the persons by whom he is employed.

If he take the middle course, and dispose of the cotton, at the medium price of the market, he violates his engagement to both, for on the one side, he was to obtain the highest, and on the other pay the lowest price, and he pockets a double reward, where he has performed neither of his obligations. We conclude that the Parish Court, in our opinion erred, in allowing the charge which was substituted to the one he was requested to give.

The plaintiff’s counsel has insisted, that the evidence establishes that the defendant, after he had knowledge that cotton, which the plaintiff had to sell, had been used in filling his order, promised payment, thereby ratifying sale and precluding himself from contesting the plaintiff’s claim; that the verdict is fully supported by the testimony, and ought not to be disturbed.

The defendant’s counsel has contended that his client prayed for a trial by jury, as he was entitled to demand it by law, and thereby acquired a right to a fair trial by his peers, uninfluenced by any erroneous expression of the law by the inferior court, that as juries ought to respect the opinion of the court on questions of law, their verdict was given in accordance thereto, and therefore, it is not probable they resorted to an examination of the plea of ratification, which the adverse counsel has no right to withdraw from the consideration of the jury, to submit it to that of the court, and he has therefore prayed us to remand the case for another new trial by jury.

The power to remand a case, whenever this court thinks justice requires it, is general in the law which organized it. We have often exercised it. We have not, however, thought that every mistake of the first judge, in cases in which a jury had been asked, required us to remand. We have reviewed all our decisions on this point. They are found in 4 Martin 316. 5 id. 213. 12 id. 355. 1 id. N. S. 629. 2 id. N. S. 3 id. N. S. 284. 4 id. N. S. 72. 5 id. N. S. 51. 7 id. N. S. 134. 8 id. 167, 172 and 257. 6 id. N. S. 603. 1 Louisiana Reports, 174. 2 id. 390. 3 id. 469. 5 id. 410.

None of the principles, which have guided us in these cases militates against the defendant in the present. It is most probable that, misled by the charge of the court, they did not attend to the plea of ratification, which if they respected the directions of the judge, was absolutely unimportant. Counsel should never avail themselves of the bustle and hurry of a nisi prius trial, and the confusion consequent thereto, to obtain from a court composed of a single judge, to whom much time is not given for consideration, an erroneous expression of the law to the jury.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be annulled, avoided and reversed, the verdict set aside and the cáse remanded, with directions to the jury, that a commission merchant having an order to purchase cotton, cannot apply thereto, cotton of his own, nor that of another consigned to him for sale, and to refrain from telling the jury that no law in this state forbids an agent charged with the sale of property, to buy it for a third person. And it is ordered that the appellee pay costs in this court. •