16 Abb. N. Cas. 458 | NY | 1885
The relation between a commission agent for the sale of goods and his principal is fiduciary. The title to the goods, until sold, remains in the principal; and when sold, the proceeds, whether in the form of money, or notes, or other securities, belong to
The relation between the principal and consignees for sale is, however, subject to modification by express agreemen t, or by. agreement implied from the course of business or dealing between them. The parties may so deal that the consignee becomes a mere debtor to the consignor for the proceeds of sales, having the right to appropriate the specific proceeds to his own use:
tn the present case, there is no reason to contend that the bank account against which the check was drawn did not represent trust moneys belonging to the principals, for whom Wilson & Bro. were agents. The deposits to the credit of this account were made in the name of the firm, with the word “ agents ” added. They were the proceeds of commission sales. Wilson & Bro. became insolvent in October, 1878, and they opened the account in this form for the purpose of
The supposed difficulty in maintaining the action, arising out of the fact that the money deposited was not the specific proceeds of the plaintiffs’ goods, is answered by the case of Van Alen v. Am. Nat. Bank (52 N. Y. 1). Conceding that Wilson & Bro. used the specific proceeds for their own purposes, and their identity was lost, yet when they made up the amounts so used, and deposited them in the trust accounts, the amounts so deposited were impressed with the trust in favor of the principals, and became substituted for the original proceeds, and subject to the same equities.
The objection that the deposit account represented, not only the proceeds of the plaintiffs’ goods, but also the proceeds of goods of other persons, and that the other parties interested are not before the court, and must be brought in in order to have a complete determination of the controversy, is not well taken. The objection for defect of parties was not taken in the answer, and, moreover, it does not appear that there are any unsettled accounts of Wilson & Bro. with any other person or persons for whom they were agents. The check operated as a setting apart of so much of the deposit account to satisfy the plaintiffs’ claim. It does not appear that the plaintiffs are not equitably entitled to this amount out of the fund, or that there is any conflict of interest between them and any other
We are of opinion that the judgment was properly directed, and it should therefore be affirmed.