20 F. 611 | U.S. Circuit Court for the District of Eastern Wisconsin | 1884
(charging jury.) On or about the thirtieth day of September, 1875, the defendant shipped to the plaintiffs, who were wool .commission merchants in Boston, 29 sacks of wool, containing in all about 5,730 pounds. The wool was consigned to the plaintiffs, and was to be sold by them for the account of tlie defendant. At the same time the defendant drew his draft on the plaintiffs for $1,000 on account of the shipment, which draft wa's paid on presentation, and the amount of which was to be repaid from the proceeds of the sale of the wool. Soon thereafter the defendant drew on the plaintiffs for the further sum of $1,000, and this draft was also paid. The consignment appears to have been made generally, and without any specific orders as to the time or mode of sale of the wool; and no orders as to the time of sale were given by the defendant to the plaintiffs prior to the eleventh day of February, 1876. On that day, and long after the plaintiffs had made the advances amounting to $2,000 on account of the consignment, the defendant wrote the plaintiffs as follows:
“Burlington, February 11, 1876.
“Benny, Rice & Co. — Dear Sirs: You will please do me the favor of sorting and selling my wool as soon as you can conveniently, and oblige, “Yours respectfully, Edward Brook.”
To this'time the plaintiffs, according to their account of sales in evidence, had only made sales of the wool to the amount of $81.48.. Between that date and March 16, 1877, it appears from their statement of sales that they made other sales amounting to $457.54, and, on the last-named day, they sold out the balance of the wool, realizing therefor $1,419.69; so that the total proceeds of all sales amounted to $1,958.71. The plaintiffs charged a commission of 5 per cent, for making the sales, amounting to $97.93. They claim to have paid for insurance, labor, and storage, $19.59, and for freight and cartage, $97.03. With interest on their advances, and on the amount paid for freight and cartage, to March 5, 1877, they make the deficiency remaining, after accounting for the total sales of the wool, $461.21, and this suit is brought to recover that amount, with interest, from the defendant. Payment of this demand is resisted by him on the ground that the plaintiffs disregarded his instructions to sell the wool, contained in his letter of February 11th, and he claims that if the wool had been sold during that month more than enough would have been realized to reimburse the plaintiffs the amount of their advances and
The plaintiffs, in the transactions in question, stood towards the defendant in the relation of factors. Where a consignment is made to a factor for sale, the consignor has a right, generally, to control the sale thereof according to his own pleasure, from time to time, if no advances have been made or liabilities incurred on account of the consignment, and the factor is bound to obey his orders. This arises from the ordinary relation of principal and agent. But when the factor has made largo advances or incurred expenses on account of the consignment, the principal cannot, by any subsequent orders, control his right to sell at such a time as, in the exercise of a sound discretion, and in accordance with the usage of trade, he may deem best, to secure indemnity to himself and to promote the interests of the consignor. Feild v. Farrington, 10 Wall. 149.
The rule on this subject has been laid down by the supreme court in the case of Brown v. McGran, 14 Pet. 479, as follows:
“ Where the consignment is made generally, without any specific orders as to the time or mode oí sale, and the factor makes advances or incurs liabilities on the footing oí: such consignment, there the legal presumption is that the factor is intended to bo clothed with the ordinary right:! o£ factors to sell, in the exorcise of a sound discretion, at such time and in such mode as the usage of trade and his general duty require, and to reimburse himself for his advances and liabilities out of the proceeds of the sale; and the consignor has no right, by any subsequent orders, gi veu after ad vanees have been made or liabilities incurred by the factor, to suspend or control this right of sale, except so far as respects the surplus of the consignment not necessary for the reimbursement of such advances or liabilities.”
By making tho advances of $2,000 lo the defendant, the plaintiffs acquired a special interest or property in the wool, and therefore they held it for their own indemnity as well as for the benefit of the defendant. The consignment of wool, it is undisputed, was made without any specific orders in the first instance as to the time of sale, and it is not denied that the advances were made on account of such
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If you find for the plaintiffs, you will assess their damages at such sum as will repay them the difference between the proceeds of the sales of the wool and the aggregate amount of their advances, commissions, and disbursements for freight, cartage, labor, insurance, and storage, with an allowance of interest at 6 per cent., the legal rate in Massachusetts.