Barry v. Boninger, 46 Md. 59

Barry v. Boninger

46 Md. 59 | Md. | 1877

Grason, J.,

delivered the opinion of the Court.

The question presented upon this appeal is, whether the appellants are entitled to retain out of the proceeds of the sale of the “Francis Satterly’s” cargo of sugar, an amount of money due them by Stirling, Ahrens and Company, for brokerage at the time of the failure of the latter firm on the 26th August, 1815. The cargo of the “Sat*65terly,” was imported by Stirling, Ahrens and Company, under letters of credit from the appellees dated July 27th, 1875, and arrived in Baltimore under bills of lading in the name of the appellees, in accordance with the agreement between the appellees and Stirling, Ahrens & Co. as contained in the letter of .credit. Upon the arrival of the vessel, Stirling, Ahrens & Co. gave a receipt to Boninger Bros., for the sugar specified in the bill of lading, in which it was stated that they agreed to hold in storage, as the property of Boninger Bros., the sugar, with liberty to sell the same, and account to them for the proceeds, until the amount of drafts drawn on Schroder and Boninger, of London, in pursuance of the letter of credit, and accepted by them against the cargo of the “ Francis Satterly,” should be satisfactorily provided for. The cargo was sold to McKeen, Newholt & Co., of Philadelphia, through the defendants as brokers, but before it was all delivered, Stirling, Ahrens & Company failed on the 26th August. The appellants were then, on the 27th August, authorized to deliver the balance of the cargo, and to draw for the proceeds. Upon receipt of the money from the purchasers, the appellants retained out of it the amount due them by Stirling, Ahrens & Co., fpr brokerage in selling other cargoes imported by them, and not belonging to the appellees, and the question is, had they a right to do so. Brokers do not usually possess the right of general lien, though, like other agents, they may be in a situation to exercise the right of particular lien. The reason of this seems to be that the distinguishing feature in the character of broker is, that in general he is not entrusted with the possession of the property respecting which he is employed to act in that capacity, but that his business is merely that of a negotiator between the contracting parties. The right of lien is a right in one person to retain that which is in his possession belonging to another, until certain demands of the party in possession are satisfied, and it *66presupposes that the person making the claim, has possession of property belonging to the person against whom the claim is made. But it is evident that, from the nature of a broker’s occupation, he has not, under ordinary circumstances, any property of his principal in his hands, on which the right of lien can attach. See Russell on Factors and Brokers, 193, marg., (48 Law Lib., 121.) In the case before us, the property in the sugar was clearly in the appellees under the letter of credit, and Stirling, Ahrens & Co’s trust receipt. But even if a broker possessed a ' right of lien, it is clear that the debt in respect of which he claims the right, must he due from the person whose property he seeks to retain by virtue of it, and therefore if he know, or have reason to believe that the person by whom he is employed, is himself merely an agent, he will not he allowed to retain property of that agent’s principal which may come to his hands in the course of his employment, for a debt due from the agent himself. Russell on Factors and Brokers, 200 (marg.,) and cases there cited. Mr. Lehr and Mr. Ahrens both swear that Mr. Hoogewerff was informed by them, on the 26th day of August, before he was authorized to deliver the remainder of the “Satterly’s ” cargo, and to receive the proceeds, that the sugar was the property of the appellees. Mr. Hoogewerff swears that he thinks that he was so informed later than the 26th August, hut we agree with the learned Judge, before whom this case was tried below, that it is immaterial whether he had or had not such notice. The property in the sugar being in the appellees, the appellants had no lien upon it for, and could not retain out of it, the amount due by Stirling, Ahrens & Co. for brokerage effected for them. The only claim the appellants could legally assert against the cargo of the “ Satterly,” or its proceeds, was tor the amount of brokerage due them, for effecting a sale of that particular cargo. The judgment appealed from will he affirmed.

Decided 1st March, 1877.)

Judgment affirmed.