Capron v. Adams, 28 Md. 529

Capron v. Adams

28 Md. 529 | Md. | 1868

Robinson, J.,

delivered the opinion of this Court.

In February, .I860, the appellees’ testator, James C. Adams, at the instance of the appellants, agents of Messrs. Huth & Co., of London, shipped to the latter, three hundred and fifty-three tierces of beef. Upon this consignment, advances were made to the amount of $6,254.44, being the proceeds of several bills of exchange drawn by the appellants on Huth & Co., as appears by the following receipt:

“Received, Baltimore, 22d February, 1860, of Capron & Co., four hundred and nine dollars, which with $5.84416¶18-heretofore received, is $6,2541V-¡r, advanced on 353 tierces of beef, shipped to London, per ‘Emolía/ for sale on my account, and, on receipt of account of sales of same, I promise to refund any deficiency that may arise therefrom.

“James C. Adams.”

The advances being largely in excess of the sales, this suit was brought to recover the deficiency. The declaration contains the usual money counts, and also a special count alleging an agreement on the part of the defendant, to refund to the plaintiffs any deficiency that might arise between the proceeds of sale and the advances made. In the former appeal in this cause, 21 Md. Rep., 186, it was held that the plaintiffs right to recover was qualified by the care and diligence with which Iluth & Co. discharged their duties as consignees. Whether they were guilty of negligence, or misconduct in the sale of the beef, was the question in issue between the parties. Evidence was offered on the part of the appellants, to prove that the quality and condition of the beef when inspected in London, was not such as to command the highest market price, and that its appraised value there rated below the in*544voices made in Baltimore. On the other hand, the appellee proved that the beef was of the best quality when packed, and that it was put up with the greatest care. We- think it was competent for the defendant to follow up this proof, by showing, the'value of the beef in the Baltimore market at the time it was shipped. It was responsive to the attack made by the plaintiffs upon the quality and condition of the beef, and tended to corroborate the invoice values which had been offered in evidence without objection. The first objection therefore is not sustained. We do not however concur with the ruling of the Court in the second bill of exceptions. This is not the case of an ordinary consignment to be sold according to specific instructions, and upon which no advances have been made or liabilities incurred. In such a case, the right of the consignor to direct and control the sale could not be questioned, being the necessary result of the relation of principal and agent. But here, the consignment was made without restrictions, and the sale and management of the beef was left entirely to the judgment and discretion of Huth & Co. “ Do with it just as it were your own,” is the instruction of Adams to the consignees, in his letter of February 23d, and when informed of the depressed condition of the London market, in his letter of July 19th, he says: “I am sure that you will effect sales to the best advantage.” Moreover, large advances had been made upon the shipment, thereby conferring upon Messrs. Huth & Co., in the absence of any agreement to the contrary, the undoubted right to sell, in the exercise of a sound discretion, and in such mode as the usages of trade and their general duty require. Brown & Co. vs. McGran, 14 Peters, 479. It was in view of these relative rights and duties of the parties, that this Court in the former appeal, decided that Huth & Co. were under no obligation to notify Adams of the depreciated value of the beef before making sale, nor was it their duty to inform the appellee of the condition of the London market and the inquiry of the witness as to whether Adams could not have protected himself *545against loss, if lie had been advised of the state of the London market was irrelevant and calculated to mislead the jury. Admitting the right of the appellee to have controlled the mode and manner of sale, upon re-imbursing Huth & Co. for the advances made by them, it no where appears, that the appellee ever offered to reimburse them, or gave any specific orders in regard to the disposition of the consignment. On the contrary, all the evidence shows that the sale was intrusted solely to the good faith and judgment oí‘the consignees.

For these reasons, we are also of the opinion, that the plaintiffs’ third prayer should have been granted. The right of the plaintiffs to recover was expressly qualified by the good faith and due care on the part of Huth & Co., in the sale of the beef, and accords with the opinion of this Court, expressed in the former appeal. The plaintiffs’ second prayer was properly rejected. It is true, that whenever a debt, payable in one country, is sued for in another, the plaintiff is entitled to recover a sum sufficient, as of the day of trial, to replace the money in the country where, by the 'terms of the contract, it was to be paid. This Court so decided in Marburg vs. Marburg, October Term, 1866, where, by express agreement, the money was to be paid in florins, at Frankfort on the Maine. But there is no such agreement in this case. ' On the contrary, the money was advanced, and the contract made between residents of this State. The beef was shipped at the instance of the appellants, the receipt to cover any deficiency that might arise taken by them, and it does not appear, up to the time of the consignment, that Adams ever knew or had any communication with Huth & Co. Apart from the; evidence in regard to usage, this case would come directly within the ruling of Grant, et al. vs. Healy, in which it was held, that the balance due on advances made in Boston, by the agent of a foreign factor, was payable in Massachusetts, and that the plaintiff was entitled to recover the deficiency only at the par of exchange. In this case, however, the contract must be interpreted, and the rights and liabilities of the parties ascertained *546by the universal custom, which the evidence proves to exist among commercial men in Baltimore, in regard to advances, made by agents of foreign factors upon consignments. In all such cases, it appears that if the proceeds of sale are insufficient to cover the advances, it is the duty of the consignor to place in the hands of the agent, funds sufficient to re-imburse the factor, at the current rate of exchange, at the time when the account of sales showing the deficiency is presented. The liability of the consignor is fixed as of that day. The plaintiffs, therefore, in this case, were only entitled to recover a sum sufficient to re-imburse Huth & Co., as of the day when the account of sales was presented, with interest on said sum, if payment was delayed. The liability of Capron & Co. to Huth & Co., was fixed upon the rendition of the account of sales, and it was their duty to have discharged it. If paid by them at that time, they could not demand of Adams any greater sum; — because they did not pay it, can furnish no reason why the liability of the defendant should be increased. The liability of the defendant, therefore, being fixed as of the day when the account of sales was rendered, and it being admitted that there was no premium on gold over United States legal tender notes at that time, we deem it unnecessary to decide the question raised by the defendants’ second prayer. The judgment in this case must be reversed and a procedendo awarded.

(Decided 21st April, 1868.)

Judgment reversed and procedendo awarded.