12 La. Ann. 505 | La. | 1857
On the re-hearing, the opinion of the court was delivered by
The garnishees, MeEb’oy & Bradford, received on consignment, between the 2d and 12th April, 1856, twenty-one bales of cotton belonging to defendants, accompanied by the following letter of instructions:
‘•'■Messrs. McElroy & Bradford:
“I send you some cotton, which I hope you will receive in due time, and I wish you to sell as soon as you can, or as the times justify, and when sold please pay the proceeds to David Taylor & Go. I will forward some more as soon as I get it to the river. Please let me hear from you as soon as you sell.
“Yours, very respectfully,
“J. N. McKinley.”
The garnishees immediately notified David Taylor & Go. that the cotton was on hand as .shipped by MeKinley for their benefit, and exhibited to them MeKinley's letter of instructions, and told them that as soon as the cotton was sold, the proceeds of the same would be paid to them. The garnishees also offered at the same time to Taylor & Go. to sell the cotton immediately, if required, but advised them to hold on for an advance in price, to which Taylor & Go. assented. Several weeks after this conversation the garnishees made sale of the cotton, but before they had weighed and delivered it, garnishment process, at the instance of plaintiffs, was served upon them herein, on the 1st May, 1856. Damid Taylor S Go. intervene in this suit, prove that they are creditors of defendants, by account, to an amount exceeding the value of the cotton, and claim its proceeds by preference over the attaching creditor.
The facts of this case are very similar to those of Armor v. GoelAwrn, 5 N. S. 668. The garnishees, as we have seen, received the cotton from the defendants, who were its owners, with instructions to sell as soon as practicable or advisable, and to pay over the proceeds to the intervenors. Those instructions left a discretion as to time of sale of the cotton, but the destination of the proceeds was peremptory. The garnishees communicated at once with the intervenors, and submitted themselves to their arbitrament of the propriety of an immediate sale, tendering merely their advice to hold on for a rising market. The intervenoi’S accepted this advice, and directed the garnishees to delay sales. The stipulation pour autrui contained in the letter of instruction of defendants to the garnishees having been thus accepted by the party for whose benefit the stipulation was made, could no longer be revoked by the shipper of the cotton. C. O. 1884. The shipper had lost the control of it, and could no longer give it another destination.
Erom the moment of the acceptance, as manifested by the acts above detailed, the garnishees are to be viewed as tx’ustees for the intervenoi’S,, who had a vested interest in the cotton and its proceeds, which entitles them to a preference over the attaching creditor. Gray v. Trafton, 12 M. R. 702; Conery v. Webb, Rawlings & Co., 12 An. 282.
It is, therefore, adjudged and decreed, that the judgment of this court, heretofore rendered, he set aside, and that the judgment of the District Court be affirmed, with costs.
Overruled Decision of Lea, J. The plaintiffs being creditors of McKmley & Moore who are absent defendants, levied an attachment upon twenty-one bales of cotton in the hands of MoElroy & Bradford. Accompanying the shipment from the defendant to MoElroy & Bradford was the following letter’of instructions:
' “Shreveport, La., March 29th, 1854.
“ Messrs. MoElroy <& Bradford: '
“ I send you some cotton, which I hope you will receive in due time, and I wish you to sell as soon as you can, or as the times justify, and when sold please pay the proceeds to David Taylor & Go. I will forward some more as soon as I get it to the river. Please let me hear from you as soon as you sell.
“ Yours, very respectfully,
“ J. N. McKinlev.”
This letter was shown before the attachment to David Taylor & Go., who have intervened in this suit, and have claimed the proceeds of this shipment as applicable to a debt due to them, from the defendants. At the date of the service of the attachment the cotton had been sold, but had not been weighed or delivered.
These are substantially the facts of the case.
The question to be determined is whether David Tv/ylor <& Go., the intervenors, had acquired such an interest in the cotton or its proceeds, as to protect it from attachment at the suit of a creditor of the shipper.
The cotton was in the hands of the defendants’ agent; it had not been weighed or delivered. The possession of the agent was, so far as any legal consequences flowed therefrom, that of the principal, and in his hands it would have been liable to attachment.
The case is not presented, as in that of Palmer & Co. v. Hornor, of a factor who, having accepted a consignment, seeks to divert the proceeds to a different purpose from that contained in his instructions. It may be conceded that the factors in this case could have given no other destination to the proceeds of the cotton in their hands than that contained in the letter accompanying the shipment, but the rights of third parties are not affected by their obligations as factors. The exhibition of the letter of instructions to the intervenors could, under the circumstances, confer no rights upon them: it merely conveyed information, of the intentions of the defendants with reference to the disposition which would be made of the proceeds of the shipment when sold. No advance was asked or obtained by the agents, nor was any new credit given upon the faith of the promised appropriation of the proceeds: the transaction consisted simply in the announcement of the mt&ntions of the shipper, which no doubt would have been carried out but for the seizure. Until the sale of the cotton was complete it was subject to seizure in the hands of the defendants’ agent.
It is true, as a general rule, that where the owner has lost all control over the property, and cannot change its destination, creditors cannot attach, but the application of this rule has been restricted to cases where the delegation was in some manner or form the subject matter of a contract. A mere letter of instructions from a shipper to his own agent, which is not made the basis of any new engagement or transaction, cannot be so considered, though such instructions may have been communicated by the agent to the party to whom the payment.was intended to be made.
It is ordered, that the judgment appealed from be reversed, that the plaintiffs, J. Burnside & Go., do have and recover of the defendants, MoKinley & Moore, the sum of $930 17, with interest thereon at the rate of eight per cent, per annum from the 30th day of April, 1856, till paid, and costs of suit to be paid by preference out of the proceeds of the property attached herein. It is further ordered, that the intervention of David Taylor & Co. be dismissed at their costs, and that the defendants and intervenors pay the costs of this appeal.
