In re A. B. Baxter & Co.

152 F. 141, 1907 U.S. App. LEXIS 4249

Opinion

PER CURIAM.

The appeal in this case presents the question whether the firm of Houser & Co. was the agent of the alleged bankrupt at Atlanta in soliciting orders to be executed by Baxter & Co. at New York for the purchase and sale of stocks and products. Upon a state of facts similar in all essential particulars, it was decided in Municipal Telegraph & Stock Co. v. Ward, 138 Fed. 1006, 70 C. C. A. 284, that the relation of principal and agent did not exist. That decision is controlling in this court as an authority, and an independent examination of the question is unnecessary. It is proper to say, however, that there are two cases to the same effect decided in the appellate branch of the New York Supreme Court, viz.: Holman v. Goslin, 103 App. Div. 606, 93 N. Y. Supp. 126, and Willard v. White, 56 Hun, 581, 10 N. Y. Supp. 170. Smith v. New York Stock & Clearing House Co., 25 N. Y. Supp. 261, relied on as a decision to the contrary, is differentiated from the other decisions in the very important fact that the “correspondent” deposited all moneys received by him as margins and commissions in the bank account of the corporation, and also in the fact that the corporation had arranged directly to protect the customers of the correspondent from loss of margin or profits in their dealings with him.

It follows that the court below erred in allowing the claim of Whit-taker.

The order is reversed, with costs.