Bradford v. Kimberly & Brace

| New York Court of Chancery | Sep 28, 1818

The cause stood over for consideration until this day.

The Chancellor.

It appears in proof that the owners of the cargo of the Edwardo, in January, 1814, appointed the defendants their agents to receive and sell the cargo, and distribute the proceeds. The defendants were at the same time part owners; but this special agency was altogether distinct from their ordinary powers as part owners, and they were to be considered, for this purpose, as agents for the company; and in that character they were entitled to their commissions or compensation, in the same manner as any other persons, being strangers in interest, would have been entitled under such an agency. In the case of joint partners, the general rule is, that one is not entitled to charge against another, a compensation forhis more va- - Iuable or unequal services bestowed on the common concern," without a special agreement; for it is deemed a case of voluntary management. This is the doctrine in the cases on this point. (Thornton v. Proctor, 1 Anst. 94. Burden v. Burden, 1 Vesey and Bea. 170. Franklin v. Robinson, 1 Johns. Ch. Rep. 157.) But where the several owners meet, and constitute one of the concern an agent, to do the whole business, a compensation is, necessarily and equitably, implied in such spécial agreement, and they are to be considered as dealing with a stranger. The defendants are, consequently, to be viewed as commission merchants to receive and sell the return cargo, and they are entitled to the rights belonging to that character.

If this conclusion be correct, there is then no doubt that the claim on the part of the defendants must be admitted. It is well settled, that á factor may retain the goods or the proceeds of them, not only for the charges incident to that particular cargo, but for the balance of his general account; and this allowance is made not only while the goods remain in specie, but after they are converted into money. This was the doctrine declared in Kruger v. Wilcox, (Amb. 252.) and afterwards, by Lord Mansfield, in Godin v. London Assruance Company, (1 Burr. 494.) and by Mr. J. Butler, in Lickbarrow v. Mason. (6 East, 23. in notis.) Ami it is further settled, that this lien applies not only for the amount of the money actually disbursed for the necessary use of the-property in hand, and for acceptances actually paid, but for the amount of outstanding acceptances not then due. ■ The factor may retain the goods, or the money into which they have been converted, until he is indemnified against the liability to which he had subjected himself. (Hammonds v. Barclay, 2 East, 227. Drinkwater v. Goodwin, Cowp. 251.) This is very equitable doctrine, especially when the acceptances and responsibilities were assumed, or necessarily presumed to have be'm assumed, upon the credit of the property in his possession, In this case, the accounts annexed to the answers are admitted to be correct; and it appears by them that at the date of the assignment from Bulkley to the plaintiff, he was indebted to the defendants for moneys advanced, or responsibilities assumed and afterwards discharged by the defendants, to more than his share of the nett proceeds of the goods committed to the disposal of the defendants, after crediting the plaintiff with what he has since received under that assignment. There was nothing due to the plaintiff when he filed his bill. It will be readily admit» ted, that the plaintiff took no other or greater right under his assignment, than what Bulkley possessed when he made it. It was ¿nade subject to all existing equities.

Bill dismissed, with costs.