126 Minn. 485 | Minn. | 1914
Plaintiff prevailed against the Massachusetts Bonding & Insurance Co., in an action to recover from defendant Enge the net proceeds, exceeding $2,000, of two carloads of wheat alleged to have been consigned by plaintiff to him as a’licensed commission merchant, and from his co-defendant, above named, as surety, on a statutory bond. The latter appealed from an order denying its motion for judgment notwithstanding the verdict or for a new trial.
The complaint was sustained as against a general demurrer, in 122 Minn. 316, 142 N. W. 328, where its substance is detailed. The pertinent statutory provisions regulating the licensing and bonding of commission merchants are contained in G. S. 1913, § 4598, et seq., some of which are construed in the opinion of Chief Justice Brown in the case cited. Plaintiff established prima facie the allegations of the complaint; but it appeared that Enge had been a commission merchant of Minneapolis for several years previous to the shipments mentioned, during which time plaintiff, a country grain dealer, had been forwarding grain to him for sale, the business between them being conducted as follows: Enge sold the grain; made reports of sales to plaintiff; credited the net proceeds to it;
Appellant’s contention is that the agreement, with this long course of dealing, took the case out of the statute, establishing the ordinary relation of debtor and creditor, and abrogated that usually arising between consignor and consignee, thus, relieving it of responsibility. The gist of the argument in support of this position is that plaintiff did not require Enge to handle the money received from sales of grain as prescribed by the statutes referred to; that the bond was given to secure his honesty and not his credit or continued solvency; and that no breach of duty imposed by the statute occurred, because he disposed of the proceeds in accordance with both the agreement and course of dealings. We do not concur. In the case cited it is said:
“The several sections of the statute were designed by the legislature for the protection of dealers in farm produce, who were, in the nature of the business, compelled to intrust the sale of their commodities to commission merchants located at commercial centers and, further, that the principal purposes of the law were “the protection of shippers from the over-reaching of commission merchants.”
The surety’s obligation was conditioned as required, by statute, and in terms provided it should stand responsible that Enge should “faithfully account and report to all persons intrusting him with grain,” etc., to be sold for account of the consignor, less the customary charges “on account of the making of said sale, and necessary and actual disbursements,” and should “faithfully perform his duties as such commission merchant.” The statute is silent as to the duty of the commission merchant to remit proceeds, merely requiring him to render to the consignor true statements of sales, the legislature evidently not intending to interfere with the common law rule allowing the factor to account within the time agreed, or, in the absence of
We hold appellant’s liability established as a matter of law, and find no errors in rulings on evidence or in the charge which could affect the result.
Order affirmed.