Where a sale was made of merchandise and two parties,
viz., Roots & Coe as one party, and Henry Lewis as the
other party, both claimed to be the vendors, and
Page 60 U. S. 350
to be entitled to the purchase money, it was proper, under the
circumstances which existed in the previous relations of these
parties towards each other, for the court to instruct the jury as
follows,
viz.:
"1. If they shall find that the merchandise had been made
subject to the order of Roots & Coe; that it was sold by them
in their own name; that at the time of sale it belonged to them, or
that they had an interest in it for advances and commissions and an
authority as agents to dispose of it, and that it was delivered to
and received by the vendee in pursuance of such sale, then Roots
& Coe were entitled to the purchase money."
"2. That although the jury may find from the evidence that the
merchandise was sold to the purchasers by Henry Lewis, yet if they
also find that it belonged to Roots & Coe or to the persons for
whom they acted as agents, and if the latter, that Roots & Coe
had an interest in and control over the merchandise to cover
advances and commissions, that the purchasers subsequently promised
to pay Roots & Coe the purchase money, and that the suit was
instituted before the price had been paid to Henry Lewis, then
Roots & Coe were entitled to the purchase money."
The existence of warehouse receipts given by another person was
not a sufficient reason to justify the purchasers in refusing to
pay for the property which they had purchased and in the possession
of which they had not been disturbed.
Under the circumstances of the case, Roots & Coe had a right
to consider Henry Lewis as their agent, and to adopt his acts. The
purchaser had no right to allege that Henry Lewis was a
tortfeasor.
Roots & Coe, having made the contracts, and having an
interest to the extent of their commissions, had a right to
maintain the suit.
The nature of the case is fully explained in the opinion of the
Court.
MR. JUSTICE CAMPBELL delivered the opinion of the Court.
The plaintiffs below, Roots & Coe, sued the defendants
McCullough
et al. in general
indebitatus
assumpsit in the circuit court for the price of a quantity of
hams in tierces which they claim to have sold and delivered to
them. The plaintiffs are merchants in Cincinnati, Ohio, who, on
their own account, and as agents for Adams & Buckingham, of New
York, in November, 1853, contracted with Henry Lewis of the same
city to make advances upon his consignments of bacon, pork, and
similar articles of provisions which these consignees were to
dispose of, and after reimbursing the advances and expenses were to
appropriate the net profits in part to the payment of a preexisting
debt due to those firms. The course of business was to suffer Henry
Lewis to prepare the articles for the market and to superintend the
sales under a condition of accounting for their proceeds to the
consignees. The advances were usually made upon the warehouse
receipts of a firm of which Lewis was a partner, generally before
the property specified
Page 60 U. S. 351
in them was in the warehouse. The receipts expressed articles
which the warehouseman expected either to prepare or to procure
otherwise, and the money advanced was generally intended to aid
that object. To secure themselves from the contingency of any
failure in these anticipations, the plaintiffs Roots & Coe
sometimes exacted the guarantee of Samuel Lewis, a brother of Henry
Lewis. This generally took the form of a warehouse receipt made by
him, corresponding to the others. The articles designated in the
receipts of Samuel Lewis, it was understood, would be supplied by
Henry -- Samuel being unconnected with any business of this
description on his own account.
In April, 1854, Roots & Coe were the holders of a number of
receipts of Samuel Lewis for provisions, which Henry Lewis was
unable to supply. The plaintiffs Roots & Coe agreed, that if
Samuel Lewis would secure the consignment of a quantity of hams, by
executing a new receipt therefor, they would extend their advances
to Henry Lewis until he could make the best disposition of them.
This was assented to, and the contract hereafter mentioned was
made.
Samuel Lewis had not interfered with the business of Henry; nor
did he control the property which his receipts from time to time
specified. The property was left in the charge of Henry Lewis, to
be appropriated according to his contract with the plaintiffs,
Roots & Coe, of which the receipt was treated as a guarantee.
The receipts executed at this settlement bear date the 4th of
April, 1854, and are as follows:
"Received in store of Henry Lewis, and subject to the order of
Roots & Coe, but not accountable for damages by fire, four
hundred and fifteen hogsheads sugar-cured hams in pickle,
containing nine hundred pounds net weight; said hams to be smoked
and canvassed within thirty days and delivered to said Roots &
Coe or their order, said Roots & Coe being responsible for the
smoking and canvassing the same; and it is further agreed between
the parties that when the above hams are delivered to said Roots
& Coe, then and in that case my former warehouse receipts for
two thousand five hundred barrels of mess pork, four hundred
barrels of lard, and one hundred thousand pounds of shoulders from
the block shall be given up and cancelled; but I am not responsible
for smoking or canvassing the same, that being a matter between
said Henry Lewis and Roots & Coe."
"[Signed] SAMUEL LEWIS"
At the same time, Henry Lewis gave the following receipt:
"Whereas Roots & Coe hold Samuel Lewis' warehouse
Page 60 U. S. 352
receipt of this date for four hundred and fifteen hogsheads
sugar-cured hams in pickle, each hogshead containing nine hundred
pounds net weight, to be delivered within thirty days, now I do
hereby agree to smoke, canvass, yellow-wash, and pack the same,
free of charge to Roots & Coe, and also agree not to require
Roots & Coe to refund to me the freight on the same from
Indianapolis to this place, being one hundred and fifty cents per
hogshead, which I have paid, in consideration of having received an
advance on the above-mentioned hams from Adams & Buckingham,
through said Roots & Coe. But in case I should purchase and pay
for the same within thirty days from this date, then Roots &
Coe agree to refund the freight from Indianapolis to this point,
being one dollar and fifty cents per hogshead."
"HENRY LEWIS"
At the time this contract was made, the property specified in it
was not in store at Cincinnati, but a portion was delivered to the
plaintiffs Roots & Coe the day after its date. The remainder
came consigned to their order during that and the following month,
and was deposited in the warehouse of Henry Lewis, under their
directions, and Henry Lewis was employed to canvass, yellow-wash,
brand, and pack in tierces the hams, ready for the market; for this
Roots & Coe were to pay Lewis his bill of charges as a further
advance. While the property was in this condition, a disagreement
arose between Henry Lewis and Roots & Coe relative to a
deficiency in the weight of the hogsheads and whether the warehouse
receipt of Samuel Lewis amounted to a warranty of the weights.
In May and June, 1854, the defendants below purchased two
hundred and twelve tierces of these hams at a specific price. Roots
& Coe and Henry Lewis respectively claim to have made this
sale, and both were present when it was made.
The money arising from the sale was designed for the former, and
the sale was entered on their books, and there is strong evidence
to the fact that the defendants promised to pay their bill for the
hams in June, 1854. But before the payment, Henry Lewis insisted
upon a surrender of the warehouse receipts of Samuel Lewis; and
that being refused, he directed the defendants to appropriate the
price as a credit on the joint debt of Samuel Lewis and himself to
them, and this was done by them accordingly.
Upon the trial in the circuit court, the plaintiffs in error
moved for fourteen distinct instructions to the jury, which the
court declined to give, but gave in their stead the following
charge:
"1. If the jury shall find from the evidence in this case
Page 60 U. S. 353
that the said two hundred and twelve tierces were part of the
hams contained in the four hundred and fifteen hogsheads mentioned
in the receipt of April 4, 1854; that they were sold by the said
plaintiffs in their own name to the said defendants; that at the
time of the said sale, the said hams belonged to the said
plaintiffs, or that they had an interest in the same for advances
or commissions, and authority as the agents of Adams &
Buckingham to dispose of the same, and that said hams were
delivered to and received by said defendants in pursuance of said
sale, then the plaintiffs are entitled to recover the full amount
or price of the said hams."
"2. That although the jury may find from the evidence that the
said hams were sold to defendants by Henry Lewis, yet if they also
find that at the date of said sale the said hams belonged to
plaintiffs, or to Adams & Buckingham, for whom the plaintiffs
acted as agents; and if the latter, that the plaintiffs had an
interest in and control over the said hams, to cover advances and
commissions; that defendants subsequently promised to pay
plaintiffs the same, and that this suit was instituted before the
price of said hams had been paid by defendants to Henry Lewis, then
and in that event the plaintiffs are entitled to recover."
To this charge McCullough and Culbertson excepted, as well as to
the refusal of the instructions moved for, and assign these
decisions as errors in this Court. The written contract of
November, 1853, which arranged the terms and course of business
between the plaintiffs below (Roots & Coe) and Adams &
Buckingham, their principal, with Henry Lewis for the year 1854
confers on the former a plenary power to dispose of the
consignments to be made for advances under that contract. The
contract of April did not alter or modify this term in the
engagement. Henry Lewis was then in arrears to them. He had
involved his brother Samuel in engagements as his surety, which he
could not fulfill. This contract of April was a relief and an
accommodation to the brothers. The license to Henry Lewis to
prepare the provisions for market and to select the markets and
purchasers was an indulgence to him, and did not diminish the
rights of Roots & Coe in the property or their powers under the
contract. Whatever sales were made by him were made as the agent of
Roots & Coe, and they were entitled to control the price. He
was not in a condition to dispute their title, and his authority to
the plaintiffs in error to appropriate the price as a credit upon
another demand was a fraud upon the rights of Roots & Coe and
Adams & Buckingham.
Zulueta v. Vincent, 12 L. &
Eq. 145;
Bott v. McCoy, 20 Ala. 578; Walcott v. Keith, 2
Fost.N.H.
Page 60 U. S. 354
196. We think the cause was fairly submitted to the jury in the
charge of the court. The instructions prayed for by the plaintiffs
in error present several questions which will now be
considered.
They affirm that if Samuel Lewis did not assent to the sale, nor
waive his right to detain the property until his warehouse receipts
were surrendered, and that Roots & Coe from time to time
refused to surrender those receipts, and still control them, they
cannot maintain an action for this money.
But the existence of these facts does not authorize the
defendants McCullough et al to resist the payment of the price of
property they had purchased, and their possession of which had not
been disturbed. Samuel Lewis had no title to the property, nor any
power to sell it, nor any claim on the price. At most, he had only
a lien, which he might never claim to exert, and from which the
purchasers have experienced no injury.
Holly v.
Huggerford, 8 Pick. 73;
Vibbard v. Johnson, 19 John.
77;
Wanzer v.
Truly, 17 How. 584.
Nor can the purchasers aver that Henry Lewis had no intention to
act as the agent of Roots & Coe in making the sale, and in
doing so he did not waive any right of Samuel Lewis, nor enlarge or
impair the claim of Roots & Coe upon the property; but that he
and those claiming from him are simply tortfeasors, and that Roots
& Coe cannot claim the entire purchase money, because their
title does not embrace the entire property and right to possession.
The relations of Roots & Coe to Henry Lewis were such that he
cannot be deemed a tortfeasor except by their election. They are
authorized to adopt his acts and to claim the benefit of his
contracts. He was their bailee, and is estopped to deny their title
in any form. It is further insisted that the suit should have been
instituted in the names of Adams & Buckingham, and not in those
of Roots & Coe. But the contracts for the consignment of the
hams, as well as for their preparation for the market and their
sale, were made in the names of those persons. They are interested
in their result to the extent of their commissions, and their
principals reside in another states from themselves. The
authorities cited sustain their title to maintain this suit.
Judgment affirmed.