31 S.E. 828 | N.C. | 1898
The defendants executed and delivered to M. Lindheim, a dealer in tobacco in New York City, three promissory notes of $242 each, payable at Durham, N.C. the purchase money for five packages of Havana tobacco, to be delivered to the defendants upon their call. In the complaint it is alleged that Lindheim sold to the plaintiffs the notes before maturity and for value.
This action is for the recovery of the amount due on the notes. The defendants set up, among other defenses, two counterclaims — one for the value of a broken package of tobacco belonging to the defendants and averred to have been wrongfully converted by the plaintiffs, and the other for the value of the tobacco constituting the consideration of the notes sued upon and averred to have been wrongfully converted by the plaintiffs.
We will consider the exceptions to the rulings of his Honor in connection with the first counterclaim. It appeared from the testimony of both Lindheim and the defendants that after the execution of the notes the defendants consigned to Lindheim, at New York, a package and also a broken package of domestic tobacco to be sold by him, the proceeds of which sale to be accounted for to them. Lindheim sold the whole package and accounted therefor to the defendants. Lindheim and the plaintiff testified that Lindheim, before either of the notes (569) fell due, conveyed to the plaintiffs all of his stock and accounts as collateral security for what he might owe them. Under that conveyance, or assignment, Lindheim testified that the plaintiffs took possession of the broken package of tobacco. The plaintiffs denied that statement of Lindheim. Upon that evidence his Honor instructed the jury as follows: "The burden is upon defendant to prove by a preponderance of evidence that the broken package of tobacco came into *397 the possession of the plaintiffs and without consideration, and if the jury believe that the plaintiffs took the broken package without consideration, then the defendants would be entitled to recover its value; but if the jury believe that the defendants put the broken package in the possession of Lindheim for sale, and to account to them for its proceeds, and Lindheim transferred the said tobacco to plaintiffs for a valuable consideration, and plaintiffs had no knowledge or notice that said tobacco was held by Lindheim as agent of defendants, then the defendants cannot recover of plaintiffs its value or set off the same as a counterclaim against the notes, but must look to Lindheim for its value." There was error in that instruction. His Honor had already told the jury, in defining what is meant by a valuable consideration, that upon the sale by Lindheim of the notes and their purchase by the plaintiffs that an existing indebtedness of Lindheim to the plaintiffs was a valuable consideration, and that the title to the notes passed for the consideration; and the jury of course understood his Honor to mean from his former definition of what a valuable consideration in law was, that the transfer of the broken package of tobacco to the plaintiffs by Lindheim, for a debt which he owed the plaintiffs, was a valuable consideration and supported the transfer of the tobacco for that purpose against the rights of the defendants as consignors. (570)
But a principal who consigns goods to an agent or factor to be sold has a right to expect the proceeds of the sale to be returned to him. Where a factor sells the goods of his principal, he must keep that sale, so far as his principal is concerned, unconnected with his private affairs and not mix it up with his own interests to the injury of his principal. Guerreirov. Peile, 5 E. C. R., 399. The same principle is announced in Warner v.Martin,
From what has been said by the Court, it is unnecessary to consider the other exceptions of the defendants. There must be a new trial, and the Court is not disposed in this case to make that new trial a partial one.
New trial.