McCullough v. Roots,
60 U.S. 349 (1856)

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U.S. Supreme Court

McCullough v. Roots, 60 U.S. 19 How. 349 349 (1856)

McCullough v. Roots

60 U.S. (19 How.) 349


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.

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