45 N.Y.S. 264 | N.Y. App. Div. | 1897
Lead Opinion
The proceeding for dissolution was commenced October 25,1895. The appellant was then appointed temporary receiver, and acted as such until he was appointed permanent receiver July. 2, 1896. An agreement was made between the petitioner and the corporation June 1, 1894, whereby, among other things, the petitioner agreed to manufacture and ship to the corporation, for sale on commission, boots and shoes; to invoice the goods at the petitioner’s regular jobbing prices for stock goods, the corporation not to sell below the invoice prices, and to account for the goods at the selling prices less the commission, and the corporation agreed to receive, hold and sell
The petitioner before commencing this proceeding made claim to tiie moneys, accounts, bills and choses in action, which the receiver refused" to recognize. The court held the petitioner entitled to this money, and directed it to be paid by the receiver. We think the disposition of the fund made at Special Term was correct. The agreement clearly created between the parties the ordinary relation of principal and agent. The general rule is that the relation between a commission agent for the sale of goods, and his principal, is fiduciary; that the title to the goods until sold remains in the principal, and when sold, the proceeds, whether in the form of money or notes or other security, belong to him, subject to the lien of commission agent for advances and other charges; that the agent holds the goods and the proceeds upon an implied trust to dispose of the goods according to the directions of the principal, and to account for and pay over to him the proceeds of such sales; that the relation between the parties in respect to the proceeds of the sales is not that of debtor and creditor simply; that the money and securities are specifically the property of the principal, and he may follow and claim them so long as their identity is not lost, subject to the rights of bona fide purchasers, for value, and in case of bankruptcy or insolvency of the agent, the goods and their proceeds do not pass to the assignees in bankruptcy or receiver in insolvency for general administration, but are subject to the paramount claim of the principal.
This relation between the parties is- subject to modification by express agreement, or by agreement implied from ■ the course of business or dealing between them. The parties may so deal that -the consignee becomes a mere debtor to the consignor for the proceeds of sales, having a right to appropriate the specific proceeds to his own use. (Baker v. N. Y. Nat. Ex. Bank, 100 N. Y. 31; Com. Nat. Bank of Penn. v. Heilbronner, 108 id. 439.) The only question here is whether, under the agreement made between the parties, their relations as to the proceeds of the property after the sales had been made, were those of debtor and creditor simply, or whether they were those of principal and agent.
It seems to us that all the. provisions of the agreement indicate
These and other provisions in the agreement clearly indicate an agency for the sale of goods on commission. The goods until sold were to be the property of the petitioner, and the corporation was to sell the petitioner’s property as the petitioner’s agent. The relation of principal and agent certainly existed as to the property until its actual sale and delivery. Why should it be said to terminate at the precise moment of the sale and delivery of the property, and not to continue as to the proceeds of the sales ? It may be said that the agreement provided for payment to the petitioner, not of the proceeds of the sales themselves, but of an rniount equal to the selling ¡Drice, less the commission We think this language was used not to indicate a change in the relations of the parties, but merely to fix the amount to be paid oyer to. the petitioner. It may be said that the allowance of time until the middle of the month to render accounts of the' sales, and until the last of the month to pay over the money, indicated a design to give credit to the corporation for the money, and permit it to mingle the moneys with its own. We think the time for rendering the account was fixed for the purpose of enabling the corporation to account for all the sales at one time rather than the several sales separately, and that the time for payment was fixed to permit a short credit to the purchasers, and to give the corporation an .opportunity to make collections, and remit for various sales at one time, instead of remitting for each sale separately.
We see nothing in the agreement to lead us to conclude that, as to'the proceeds of the sales of these goods, the relation of principal and agent did not exist. The moneys, therefore, collected by the receiver belonged, not to the corporation, but to the petitioner, and
Patterson, O’Brien and Parker, JJ., concurred; Ingraham, J., dissented.
Concurrence Opinion
Where the relation of principal and agent is created- and exists, the presumption is that such relation continues as to goods and proceeds of sale; and to rebut such presumption, an agreement clear and expressive to the contrary is necessary. It will not do, therefore, to resort to ambiguous or doubtful phrases or language for the purpose of spelling out such an agreement. Talcing the contract in its entirety, the intent of the parties to continue, as to the proceeds of sale, the relation of principal and agent is reasonably free from doubt; and the contract cannot be construed into an agreement to establish, as to the proceeds, the relation of debtor and creditor. I, therefore, concur with Mr. Justice Williams for affirmance.
Dissenting Opinion
I dissent, as it seems to me .that, upon a sale of the goods, the title to the proceeds of sale vested in James Chambers, Limited, which thereby became the debtor of the petitioner, as under the contract it was required to pay for the goods sold by it, regardless of the term of credit upon which they had been sold, or its collection of the purchase price. The James Chambers, Limited, being thus required to pay for the goods, not as guarantor, but as debtor of the petitioner, the parties must have contemplated the vesting of tlie title of the proceeds in it, and that the relation of principal and agent as between the parties to this contract should cease upon the sale and delivery of the goods.
Order affirmed, with ten dollars costs and disbursements.
