Bean v. Adams & Buckingham

1 Disney (Ohio) 388

• Court: Ohio Superior Court, Cincinnati
• Decided: June 15, 1857
• Status: Published

Opinion

Giiolson, J.

Was there an agreement between Stagg and defendants that the latter were to hold on to the flour until January 20, or any other time specified in agreement?

On this point there is a conflict of testimony. The effect of the testimony, on my mind, is to induce the conclusion that there was no such contract.

As to claim of overcharge of interest and selling contrary to instructions, and without regard to interests of consignor, these two claims can not both avail. The allowance of one defeats the other. Can either, and if either, which, be allowed? They lead to an examination of the legal rights and duties of Stagg and defendants, as consignor and consignees.

I think that it is clear, upon the general principles of law, as laid down in 54 E. C. L. 380, Smart v. Sandars; 3 Comstock, 62, Marfield v. Goodhue; and in other authorities, that a consignee is subject to the orders of the consignor as to the time and terms of a sale to be made of the property consigned, unless there be some agreement to the contrary. It is the general nature of an authority to be revocable; and to make it otherwise, requires a consideration. An advance of money by the consignee to the consignor may be such a consideration; and after an advance, it may well be that the consignee has an irrevocable power of sale to reimburse his advances, as shown by the agreement in making the advance, either expressly or from the circumstances attending the transactions.

There are expressions in the case, 14 Peters, 494, Brown v. McGraw, which might induce a conclusion that the right of a consignee who had made an advance to sell, resulted as a conclusion of law, from the mere fact of the advance being made, and not derived from the agreement of the consignor, which agreement the fact of receiving an advance tended to establish and would be a consideration to sustain. But it is doubtful whether the court intended to be so understood. At any rate, it is now well established by the most recent cases in the English and American courts, that the right to sell contrary to the instructions of the consignor, must be derived from the consent of the latter, which is not shown from the.simple fact of an advance; but which may be shown from that fact, in connection with the circumstances, and does, in fact, usually occur when, as in the present ease, the advance is made contemporaneous with the shipment, and for a very heavy proportion of the value. of the article.

The consignee who has a right to sell under an agreement to secure his advances, and also an authority to sell as the factor or agent of the consignor, must, if he sells under the agreement, without reference to the interest of the consignor or his instructions, be prepared to show that the agreement has been pursued according to its true intent and purpose. If it has not been, it can not be used as a shield to protect the consignee from responsibility for a breach of duty or a violation of the orders of the consignor.

Upon an examination of the evidence in this case, and particularly the writings at the time of the commencement of the transactions, I am brought to a conclusion that there was in this case an agreement on the part of the consignor that the consignee might sell to meet the advances. The advances were made in the form of drafts having sixty days to run. Prom this and other circumstances in the case, I think there are two inferences to be drawn: 1st. That means to meet the drafts were to be realized by a sale, to make which sale for such a purpose, an irrevocable authority was given to the consignee. 2d. That, except as to a sale for such purpose, the consignee was bound to look to the interest of the consignor, and was subject to his orders.

The next inquiry is, whether the sales in the case were made under the agreement to meet advances, or under the general authority as factor? And I think that none of the sales made prior to the 1st of January, were made under the agreement. They were not made under any view of a necessity to meet advances. Of these sales, some were made, and an account of sales sent and received without objection, with a simple repetition of instructions. As to .these, I think there can be no recovery,-because an assent or acquiescence is shown, the act of the agent is approved, it is not a case of contract requiring consideration. It may or may not have been proper to sell, but the act of selling was assented to, and the order given as to subsequent sales. As to the others, I think the consignee liable, and that, under the evidence, the damage should be assessed at one, dollar for each barrel so sold.

These damages being allowed, I think there is no ground to disturb the interest account.

Judgment for plaintifí’ for $471.33.