7 W. Va. 585 | W. Va. | 1874
This is a suit in equity in the nature of a foreign attachment. The bill in the case was filed on the 1st Monday in April, 1859. The several firms of Hewitt, Roe & Co., Hewitt, Kercheval & Co., John J. Roe, & Co., and Humphrey, Tutt & Terry, are the principal defendants, against whom decrees are sought, by the plaintiffs, though there are other defendants, who the bill alleges have an interest; but the bill does not define or specify that interest; and there, are still other-defects.
I intended to preface this opinion with a full statement of the case as presented by the bill and answers,, but found that to do so is not essentially necessary, and would make the opinion unnecessarily lengthy and cumbersome..
From the case as presented by the record it appears; that the plaintiffs and a few others, who are dead, but whose personal representatives are parties to this suit,, in the latter part of February, 1851, entered into a partnership under the firm name and style of Ruffner, Don-nally & Co., in the county of Kanawha, then in the-State of Virginia, but now in the State of West Virginia, for the purpose of buying salt, manufactured and to be manufactured, in said county, and vending the-same in such markets as might be deemed expedient, in the western and southern states, and to open and keep a dry goods and grocery store in the “Kanawha Salines^ in said county — the partnership to expire on the 1st day of January, 1856. In May 1851, the firm of Hewitt,
The defendants Humphrey, Tutt & Terry, Robert M. V. Kercheval, James Hewitt and John J. Roe & Co., filed their answers to plaintiffs bill. The answers are lengthy and specific in character, and deny any indebtedness or liability to plaintiffs, by any or either of them, by reason of the matters alleged in the bill, and in fact it is claimed by Kercheval in his answer that the firm of Ruffner, Donnally & Co., are justly indebted to Hewitt, Kercheval & Co., in a sum and for causes hereinafter named; and Humphrey, Tutt & Terry that Ruffner, Don-nally & Co., are indebted to them on account of their agency as factors of Ruffner, Donnally & Co., in a large sum of money, tor balance of money advanced and paid by them to and for the use of Ruffner, Donnally & Co.
No other defendants appear to have answered the bill.
Humphrey, Tutt & Terry and Hewitt, Kercheval & Co., filed demurrers to the bill, but the demurrers were overruled by the circuit court of Kanawha county, on the 25th day of June, 1859.
It does not appear by the record that replications of any description were filed by plaintiffs to the answers of the defendants, but it does appear that both plaintiffs and the defendants, who answered, took and filed depositions in the suit, as though a general replication had been filed to each of the answers, and the court seems
At the circuit court held for said county on the 18th day of August, 1859, that court heard the cause on the bill and exhibits, the answers of James Hewitt, R. M. V. Kercheval, Humphrey, Tutt & Terry, and the affidavit of Charles Hedrick, and the proceedings theretofore had in the cause, and without undertaking to settle any principles in the cause, decreed that an account be taken before master commissioner Alexander T. Laid-ley, to ascertain the state of accounts between Ruffner, Donnally & Co., Hewitt, Roe & Co., Hewitt, Kercheval & Co., J. J. Roe &. Co., (properly John J. Roe & Co.,) and Humphrey, Tutt & Terry, respectively, arising out of the matter set forth in the bill, and other pleadings, and the proofs that should be offered in the cause, and any other matters which the commissioner should think pertinent, and the parties, or any or either of them, should request, and report his proceedings in the premises to the court.
Afterwards commissioner Laidley made his report to the court to which numerous exceptions were filed by plaintiffs and Hewitt, Roe & Co., Hewitt, Kercheval & Co., John J. Roe & Co. and Humphrey, Tutt & Terry; and on the 6th of July, 1869, the suit was heard by the court upon the papers theretofore read, and proceedings had therein, the depositions of witnesses, and other papers filed in the suit, the reports and accounts of commissioner Laidley and the papers and other evidence filed therewith, the exception of Hewitt, Roe & Co., Hewitt,
No question has been made before this Court as to the correctness of the action of the of the circuit court in overruling the demurrers filed to the bill. None of the defendants in their arguments, made or filed in this Court, question that action; and I deem it unnecessary under the circumstances and view I take of the case, to consider further the action of the circuit court in relation to the demurrer. I will proceed at once to the consideration of the question arising upon the decree of the 6th of July, 1869.
The firm of Hewitt, Roe & Co. was dissolved about the 1st day of August, 1854, by John J. Roe, one of the partners, withdrawing from the partnership, of which fact Ruffner, Donnally & Co. then, or about that time, were duly and fully notified. On the dissolution of the firm and partnership of Hewitt, Roe & Co., the firm of
Hewitt, Roe & Co., up to the 1st of August, 1854, rendered to plaintiffs, regularly and generally, monthly reports of the amount of barrels of salt received by them, the amount of barrels of salt sold by them, the amount forwarded to country agents, the amount of their charges for commissions on sales and for forwarding, and also rendered, regularly, to Ruffner, Donnally & Co., accounts current between them and Ruffner, Donnally & Co., showing, among other things, their charges and expenditures for Ruffner, Donnally & Co., for storage, shed-cooperage, drayage, &c., in tact, for every charge against them which "is rejected by the commissioner in his report.
At the time of the dissolution of the firm of Hewitt,,
From anything disclosed by the record, the credit of 132,069.50, given Ruffner, Donnally & Co., by Hewitt, Kercheval & Co., aforesaid, closed out all matters between Hewitt, Roe & Co., to the 1st of July, 1855, except salt in the hands of country agents, which had not then been collected, and the proceeds accounted for, and some notes or bills.
It appears that on the 1st day of May, 1854, there were in the hands of country agents, unsold, twenty-one thousand one hundred and thirty barrels of salt of Ruffner, Donnally & Co. This salt had previously been shipped by Hewitt Roe & Co., to country agents for sale. After the 1st day of May, 1854, and before the 1st of August, 1854, Hewitt, Roe & Co., shipped to country agents for sale one thousand five hundred and four barrels of*salt, making in the hands of .country agents on the 1st day of August, 1854, twenty-two thousand six hundred and thirty-four barrels. By the account of sales rendered by Hesvitt, Roe & Co,, No. 20, K., January 23, 1855, three thousand one hundred and eighty-four barrels of this amount was accounted for; and also by áccount, No. 21, K., July 1st, 1855,
By account No. 21, H., dated December 23, 1855, it will be seen that Hewitt, Kercheval & Co., show that they received in cash from Walker & Kellogg, Peoria, Illinois, in full for one thousand five hundred and fifty barrels of Kanawha salt, $5,005,01, which was for salt shipped by Hewitt, Eoe & Co., before the 1st of August, 1854, and is also a part of the twenty-two thous- and six hundred and thirty-four barrels above named. This last named amount of money is charged to Hewitt, Kercheval & Co., and by them accounted for to Ruffner, Donnally & Co.; Hewitt, Kercheval & Co., also charge themselves with $742, September 22, 1855, and credit Ruffner, Donnally & Co., therewith, by transfio " from Hewitt, Roe & Co. This $742, covers some two hundred and thirty barrels more. These fifteen hundred and fif
But in addition to this, John B. Smith, the agent of Ruffner, Donnally & Co., upon consideration, negotiation and correspondence on the subject, with John J. Roe & Co., and after receiving all the reports of Hewitt, Roe & Co., of their transactions-as the agents and factors of Ruff-ner, Donnally & Co., and with the full concurrence of plaintiff Ruffner, in consideration of the payment of the sum of $2,000, paid to him for Ruffner, Donnally & Co;, by John J. Roe & Co., settled in full all the unsettled claims of Ruffner, Donnally & Co., against them and against Hewitt, Roe &Co.; and in consideration of the payment of the $2,000, aforesaid, the said John B. Smith as agentas aforesaid, made and delivered to John J. Roe & Co., a receipt in these words, viz: “Received, Louisville, Oct., 1857, ol John J. Roe & Co., two thousand dollars (to be applied in payment of an acceptance of their draft, due the 15th inst.,) which amount is in full settlement of all claims against them and aganist the late firm of Hewitt, Roe & Co., and we hereby relinquish and transfer to them all notes, accounts, salt held by country agents, and all evidences of indebtedness to us, or to them, for our account growing out of previous transactions with them
[Signed.] “Ruffner, Lonnally & Co.,
. By JohN B. SMITH, Attorney.”
This receipt was executed on the reception of the $2,000, and it was enclosed in a letter written from Louisville, Nov. 13, 1857, by said Smith, as agent as aforesaid, to John J. Roe & Co., at St. Louis, in which he says to John J. Roe & Co., “we are sorry to say a short time since a very large fire near us caused us to'move our books and papers, and some were lost. The account of J. J. Roe & Co., and Hewitt, Roe & Co., stood open upon our books. Our book keeper had -them in a bundle and had not made his entries, as our Mr. Ruffner told him he expected to make this arrangement, and have, them all closed up at once. We now must ask the favor of Mr. Cochran to give us a copy of J. J. Roe & Co’s account against Ruffner, Lonnally & Co., also of Hewitt, Roe & Co., against same, and we promise not to let them go out of our hands until they are entered, and both accounts of Roe & Co., and H. R. & Co., are closed and squared up. Give us the entries necessary to square up our ledger and the salt accounts. We are very sorry to trouble you for these accounts, as they have been rendered, but hope the unfortunate way in which we lost them a sufficient apology.” “Your friends,”
[Signed.] RuffNER, DoNNALLY & Co.,
JOHN B. SMITH.
This letter and receipt is found on pages one hundred and seventy and one hundred and seventy-one of the printed record. A letter from plaintiff Ruffner to J. J. Roe &Co., at St. Louis dated 16th October, 1857, showing that the settlement was made and receipt executed, with the knowledge and sanction of said Ruffner, is found on pages one hundred and sixty-nine and one hundred and seventy of printed record. The deposition of said John B. Smith was taken in this cause by Ruffner, Lon-nally & Co., and he says, on cross-examination by Hum
The power of attorney to John B. Smith filed with his deposition is dated the 16th day of January, 1854, and, among other things, it authorizes him to sign the name of Ruffner, Donnally & Co., to all accounts, receipts &c. and to make negotiable notes, bills and other securities in the name of said firm to be used for their purposes and to endorse the name of the firm on all such notes, bills and secureties, &c.
The notice of dissolution of the firm of Ruffner, Don-nally <fe Co. as published in the Louisville Journal on the 26th day of January, 1856, is as follows: “The co-partnership of Ruffner, Donnally & Co. expired by limitation the first of this month. John B. Smith is authorized to use the name of the firm in liquidation.”
The accounts current of Hewitt, Kercheval & Co., rendered to Ruffner, Donnally & Co. at different times through the year 1856, taken in connection with other evidence, show that it was the habit of Smith, as the agent of Ruffner, Donnally &'Co. to draw and sign drafts &c., on them, in the name of Ruffner, Donnally & Co., through the year 1856, for advancements, &c., and to act for Ruffner, Donnally & Co. and as their agent in all respects after the expiration of the year 1855, as before except as to the forwarding of salt.
. I am unable to determine very satisfactorily from exhibit A filed with Noe’s answer, being a letter from Hewitt, Noe & Co. to Nuffner, Donnally & Co., dated the 15th of April, 1851, and exhibit B filed with same answer, being a letter from plaintiff, Lewis Nuffner, to Hewitt, Noe & Co., dated the 6th of May, 1851, what compensation Hewitt, Noe & Co. were to receive for collecting from country agents or whether they were to collect at all under the original contract — for Nuffner in his letter says the guarantee is not at this time expected, but sales on time must have reference to the unquestionable solvency of parties. It is not as yet decided whether the Company may not employ a collecting agent.” This matter does not appear to have been clearly agreed on at the time of the contract. But this is not very material as
I think there is sufficient in the record to show that Ruffner, Donnally & Co., assented to and acquiesced in the charges oí Hewitt, Roe & Co., for services of special agent in collecting, at five times, in the months of April, October and November, 1852, and May, 1854. These charges of Hewitt, Roe & Co., which I have been considering, were all communicated and returned by Hew
I will now proceed to ascertain the law applicable to this case as between Hewitt, Roe & Co., and Ruffner, Donnally & Co., and in many respects as applicable to the acts of John B. Smith, as the agent of Ruffner, Donnally & Co., after the expiration of the year, 1855, and also of plaintiff Ruffner, and the legal weight and effect to be given to the reports of sale and accounts current made and returned to Ruffner, Donnally & Co. Ruffner, Donnally & Co., were salt merchants as well as merchants otherwise — their residence and place of buying salt was Kanawha Co., Na.; Hewitt, Roe & Co., were commission merchants doing business in a different state and at considerable distance from "Virginia. Hewitt, Roe & Co., in 1851, became the agents or factors of Ruffner, Donnally & Co., in St. Louis, as hereinbefore stated.
A factor is commonly said to be an agent employed to sell goods or merchandise-consigned or delivered to him by or for his principal, for a compensation commonly called factorage or commission ; and when for additional compensation, in case of sale, he undertakes to guaranty to his principal the payment of the debt due by the buyer, he is said to receive del credere commission. A factor is called a home factor when he resides in the same state or country with his principal; and he is called a foreign factor when he resides in a different state or country. Story on Agency, section 33 and cases there cited. An agent may ordinarily be appointed by parob in the broad sense of that term at the common law; that is by a verbal declaration, in writing not under seal
It is the right of an agent to be re-imbursed all his advances, expenses and disbursments made in the course of his agency, on account of or for the benefit of his principal. Hence, all the incidental charges and expenses incurred for warehouse room, duties, freight, salvage, repairs, journeys and other acts done to preserve the property of the principal and to enable the agent to accomplish the objects of the principal, are to be fully paid for by the latter. But this liability of the principal proceeds upon the ground, that the advances, expenses and disbursments have been properly incurred, and reasonably and in good faith paid, without any default on the part of the agent. Story on Agency, section 336.
I think it is clear from the whole case that John B. Smith was not only the agent of Buffner, Donnally & Co., to the close of 1865, but that he continued to be their agent up to the bringing of this suit, and that Buffner, Donnally & Co., ratified and confirmed all his acts in the premises, as well as authorized them, and that it cannot, reasonably or justly, be held otherwise, upon the law ánd evidence in the cause. Smith was the witness of Buffner, Donnally & Co., and his evidence, a part of which,-only, I have recited, proves, I think,beyond doubt, that he had the direction and control of the salt and business of Buffner, Donnally & Co., in St‘ Louis; that during the years 1856 and 1857, he collected and raised from the agents of Buffner, Donnally & Co.,, in the shape of advancements and payments, at least a half million of dollars, by bills, drafts, &c., drawn,, endorsed and accepted in their firm name by him and applied the money to their use and relief: and that they were cognizant of his acts and mode of doing business
It was competent for Ruffner, Honnally & Co., in this case, to show by evidence that the accounts between them and Hewitt, Hoe & Co., have not been stated or settled. This, I think, they have clearly failed to do. But on the contrary, the evidence proves that the accounts were not only stated, but settled, adjusted and satisfied. It was also competent for Iluffner, Donnally & Co., by evidence, to impeach the settled account, by showing fraud, mistake or error in so far as substantially alleged in the bill. But no notice, whatever, is taken of the settlement in the bill, and consequently no fraud, mistake or error therein is alleged. On this subject, the bill sim
The firm of Hewitt, Kercheval & Co. was a separate and distinct firm from that of Hewitt, Roe & Co. commenced business about the 1st of August, 1854, and at the dissolution of Hewitt, Roe & Co., Hewitt, Ker-cheval & Co., upon the formation of their firm, took charge of Ruffner, Donnally & Co.’s salt business in St. Louis, upon the same terms and contract of Hewitt, Roe & Co. This rate of compensation continued until about the 15th day of January, 1855, by which time they had closed out all the salt of Ruffner, Donnally & Co., received by them, being about six thousand four hundred and four barrels, and rendered an account of sales, with an account current therefor. They then informed Ruffner, Donnally & Co., that they could not, and would not, longer receive and dispose of their salt in St. Louis, unless their compensation was increased. The amount demanded and agreed on was, I think, clearly, from the evidence and circumstances shown, twenty cents for sales from levee, twenty cents and drayage for forwarding and collectingfrom levee and twenty-five cents for sales from store— Ruffner, Donnally & Co., to pay storage- — and in all other respects similar to the former arrangement. This I think is manifest from the correspondence upon the subject, and the acts of the parties under the arrangement afterwards and throughout. The correspondence on this subject commences on page seventy-one and on page seventy-seven of printed record. Ruffner, Donnally & Co., through their Mr. Ruffner, endeavored and insisted that Hewitt, Kercheval& Co., should agree to less compensation, but they declined and insisted on surrendering the agency, unless the compensation then demanded by them was conceded; and Ruffner, Donnally & Co. did concede it, and in the correspondence admitted that the former compensation was low. Hewitt, Kercheval & Co. continued to act as the agents and factors of Ruffner, Don-
Under the last named arrangement and in accordance therewith Hewitt, Kercheval & Co., not only turned over to John J. Roe & Co., the six thousand and seven hundred barrels of Ruffner, Donnally & Co’s salt then on hand, but they also transferred to said Roe & Co bills receivable of Ruffner, Donnally & Co. received by them upon sales of salt to the amount of $17,151.17 and also eight thousand five hundred and fifty-nine barrels of salt shipped by them to country agents, which had not then been fully accounted for, and at once rendered to Ruff-ner, Donnally & Co. their final account current showing that Ruffner, Donnally & Co. were indebted to Hewitt, Kercheval & Co., in a balance of $23,769.08. Ruffner, Donnally & Co., by their said agent, by letter dated the 27th of December, 1856, acknowledged the receipt of the account. See printed record, 144. It appears that Hewitt, Kei’cheval & Co., during their entire agency, rendered, about monthly, to Ruffner, Donnally & Co., accounts of their monthly sales, and in each account they state their commissions under the different contracts. They also rendered to Ruffner, Donnally & Co., accounts current, frequently, in each year, in which, among the other items, they state their commissions, the amount paid for drayage and cooperage, for rent of yards, for labor in and about protecting and saving Ruffner, Don-
In November Hewitt, Kercheval & Co., sold all the salt they had on hand, consequently made no sales in De- . cember.
On the 16th of January, 1855, they rendered to Ruff-ner, Donnally & Co., an account current of their matters to that date in which all their charges are stated and no ■exception or objection was made or taken to it. In their ■account and report for February, 1855, they charge Ruff-
It does not appear that any answer was sent to Cochran’s letter of explanation. But afterwards on the the 12th day of January, 1857, and after the letter of Cochran must have been received, the said John B. Smith gave or sent to said Ruffner, who was going or was sent to St. Louis to see John J. Roe & Co., among perhaps others, a letter of instructions.' This letter is directed to Lewis Ruffner, Esq., and the material part of it is in these words, viz: “J. J. Roe & Co. have to pay for Ruff-ner, Donnally & Co., as per Kercheval’s balance f23,750 maturing as follows : March 4, $5,000; do. March 8, $2,-500; do. March 11, $1,250; do. March 13, $2,500; do. March 18, $2,500; do. March 21, $2,500; do. March 22, $2,500 ; do. April 4, $2,500; do. April 8, $2,500; (aggregating) $23,750. * * We have drawn on J. J. Roe & Co. at 4 nr. d., in December, for $10,000. We have written them to send authority for 15,000 at 4 m.
After this account had been stated and settled by payments and on the 30th of August, 1858, some seventeen months after the final account was returned and more than a year after the balance to Hewitt, Kercheval & Co., had been settled by payment, said John B. Smith wrote a letter to Nobert M. "V. Kercheval dated at Louisville, 30th August, 1858, in which he says : “Messrs. Hum
At this point further correspondence seems to have ceased on this subject and nothing further appears until this suit was brought.
It appears that Hewitt, Kercheval & Co., by letters informed and complained to Ruffner, Donnally & Co., at different times in 1855, of the bad state and condition in which much of their salt was delivered on the levee at St. Louis, and especially as to its bad condition as to cooperage and informed them of the necessity, for its preservation, of much cooperage being done, beyond what might be considered ordinary cooperage; that for what they called ordinary cooperage they made no charge, but their charges were for extraordinary cooperage. I think the evidence clearly proves that much of the salt was delivered in very bad condition, as to cooperage and otherwise; that much of it had been on hand a considerable time before delivery and had been exposed and injured by bad usage before delivery; that the cooperage for which Hewitt, Kercheval & Co., charged Ruffner, Donnally & Co., was necessary and in fact essential to the preservation of the salt and putting it in a marketable condition; that it was reasonable and prudent that Hewitt, Kercheval & .Co., should have the cooperage done, and that under the circumstances, as shown in the cause, and the law, Ruffner, Donnally & Co., should pay for it as they did. The charges of commission on barrels of salt used in filling up other deficient barrels may not be within the letter of the contract, still the charges as they occurred, were reported to Ruffner, Donnally & Co., with the other charges and were not objected to, and must be considered as acquiesced in and assented to by 'Ruffner, Donnally & Co., as
The charge of twenty-ñve cents per barre] for fowarded from place of storage, and not from levees perhaps not within the strict letter of the contract as originally made,' as that contract so far as disclosed was twenty cents for sales at levee, twenty cents anddrayage for forwarding from levee to country agents, and twenty-five cents, and storage for sales from place of storage. Upon the salt so forwarded from storage, Hewitt, Ker-cheval & Co., had paid the drayage from levee to place of storage, and the difference in cents to Hewitt, Ker-cheval & Co., between forwarding from the place of storage, and the levee must have been equal, at least, to five cents on the barrel. And I think the contract, according to its spirit, contemplated that Hewitt, Kerche-val & Co., should receive the same compensation for forwarding and collecting that they were to receive for sales made at the same place; and Ruffher, Donnally & Co., made no objection to these charges when the final accounts current were returned by Hewitt, Kercheval & Co., although they did make enquiry as to two other-charges, and in fact, did not raise or make any question or objection to these charges of commission on the three-thousand one hundred and eighteen barrels of salt forwarded from place of storage for some eighteen months after the return of the final account current. Besides, I think the evidence clearly establishes that these three-thousand one hundred and eighteen barrels of salt were not forwarded from place of storage contrary to instructions. It is true that during the spring of 1856, Ruff-ner, Donnally & Co., by their said agent, Smith, did instruct Hewitt, Kercheval & Co., not to forward any more salt to country agents, but to sell the salt in the-city; but it is manifest that at that time, Smith supposed that the salt then in hand would be sold in the city during the ensuing summer and fall; but during the summer and fall the demand for salt seems to have been dull and the salt was not all sold by a large amount.
There is no charge of fraud in the bill against .Hewitt, Kercheval & Co. as to the matters I have been considering ; nor are any errors or mistakes in the said final settlement with them pointed out or specifically stated in the bill. It is true they file as part of the bill the said paper writing “O. G.” but that paper does not, on its face, purport to apply to Hewitt, Kercheval & Co., as it is made out specifically against Hewitt, Koc & Co. — But-even though it be allowed that the part of the charges contained in paper “O. C” may, under the allegations of the bill, be reasonably construed to apply to Hewitt, Kercheval & Co., still the bill takes no notice of the settlement and payment of Hewitt, Kercheval & Co. and does not attempt to surcharge or falsify the settlement. And in addition thereto the evidence sustains the charges as made by Hewitt, Kercheval & Co. against Kuffner, Donnally & Co., in their various accounts rendered. The
I have not been able to find any evidence to justify the commissioner in concluding that the four hundred and seventy-three barrels in his report named, was used for filling up, simply to show how to account for it. The evidence of Cochran specifically proves the charge of $1,000, for cooperage in commissioner’s report mentioned, to be correct and reasonable, and so of all or nearly al the other charges made by Hewitt, Kercheval & Co., in their accounts against Ruffner, Donnally & Co.; and I do not think his evidence is impeached or shown to be unworthy of credit. Many of the charges came under his personal notice and supervision when made, and he was better qualified to testify correctly as to them, perhaps, than any other person, not interested. He was the clerk of Hewitt, Kercheval & Co., and familiar with most of the transactions. Upon the whole and without further specifications, it seems to me, that the charges of Hewitt, Kercheval & Co., made in their accounts rendered to Ruffner, Donnally & Co., are sustained by the evidence and course of business of the parties.
The charge of the commissioner of $2,570.29 and $616,84 interest for error in the report of Hewitt, Kerche-val & Co., of sales of six thousand two hundred and sixty-nine barrels of salt in 1856, is, I think, unauthorized and unsupported. It is not claimed in the bill or any paper filed therewith. They report the sale of this salt at $2.35 per barrel and the commissioner charges them forty-one cents on the barrel more, simply because Hewitt, Kercheval & Co., sold salt of Ruffner, Hale & Co., at $2.76 per barrel during the same jrnar. The evidence shows that the salt of Ruffner, Hale & Co., sold in that year -was new salt and in good cooperage and full weight,
The charge of $8,555.68 and interest $2,053.36, made in the commissioner’s report for the three thousand one hundred and eighteen barrels of salt shipped to the country, at $2.76 barrel, is, I think, unauthorized. This is the same three thousand one hundred and eighteen barrels of which I have before spoken as having been shipped to country agents.
The charge of $18,381.60 and interest $4,411.56, for six thousand six hundred and sixty barrels of salt, which as the commissioner says from the negligence and omission of duty of Hewitt, Kercheval & Co., as consignees, was not sold, is insupported by the evidence .or law. This is the same salt, that was turned over by Hewitt, Kercheval & Co., to John J. Roe & Co., minus forty barrels thereof sold by Roe & Co., and the same with which the commissioner has charged Humphrey, Tutt & Terry, in their account.
It appears that about the first of the year 1856 another firm and partnership of Ruffner, Hale & Co. was formed for the purpose of buying and selling Kanawha salt in the West and elsewhere. This firm, as alleged in the bill, was composed of twelve persons, and it is proven that all of these persons, including Lewis Ruffner, except two, were members of the firm of Ruffner, Donnally & Co. The bill alleges that the firm of
In the spring of 1856, Iiewitt, Kercheval & Co., at the instance of Lewis Ruffner, who was then an active partner of the firm of Ruffner, Hale & Co., as well as a member of the firm of Ruffner, Donnally & Co., took the agency for the sale of the Kanawha salt, shipped by Ruff-ner, Hale & Co. to St. Louis, for sale, and for forwarding to country agents, and during that year they sold some nine thousand four hundred and forty barrels, which brought in the gross $2.76 per barrel.
I am unable to understand why the commissioner charged Hewitt, Kercheval & Co. with this six thous- and six hundred and sixty barrels of salt, unless it was because he thought Hewitt, Kercheval & Co. were guilty of negligence and violation of duty as factors of Ruffner, Donnally & Co. in accepting the agency for the sale of the salt of Ruffner, Hale & Co., and in not selling the six thousand six hundred and sixty barx-els of salt instead of the salt of Ruffner, Donnally & Co., and at the same price, and that if the salt of Ruffner, Hale & Co. had been sold by them, the persons who bought the Ruffner, Hale & Co. salt, would have bought the old salt of Ruffher, Donnally & Co. at the same price. Now, it must be remembei’ed that Hewitt, Kercheval & Co. did sell of the old salt of Ruffner, Donnally & Co. six thousand two hundred and sixty-nine barrels during that year. And Hewitt, Kercheval & Co. deny that Ruffner, Don-ally & Co. had any such right, as that Hewitt, Kerche-val & Co. could violate it by acting for Ruffner, Hale &,
They further say, substantially, that in making, and in endeavoring, to make sales of the salt.of Ruffner, Don-nally & Co. and Ruffner, Hale & Co. they gave preference to the salt of Ruffner, Donnally & Co. and sold all they could of it. The commissioners in making this large charge against Hewitt, Kercheval & Co. is to my mind clearly not sustained by the evidence or facts in the case.and the law as applicable thereto.
First. Because the correspondence of J. B. Smith, as the agent of Ruffner,.Donnally & Co. with Hewitt, Ker-cheval & Co. on the 10th and 30th of March, 1856, and of L. Ruffner one of the plaintiffs, on the 1st April, 1856, and of Ruffner, Donnally & Co., by said Smith, on the 4th of April, 1856, and other facts and circumstances appearing in the cause, show that Hewitt, Kercheval & Co. took the agency for the sale of the salt of Ruff-ner, Hale & Co., at St. Louis, with the knowledge and consent of Ruffner, Donnally & Co. ■
Second. That the salt of Ruffner, Donnally- & Co., which was unsold on the 22d of December, 1856, by Hewitt, Kercheval & Co. and which was turned over to
Third. When the salt was tranferred to John J. Roe & Co., no claim, or pretence of claim, was urged or intimated as against Hewitt, Kercheval & Co., for any such cause, nor was any such claim made at the time Hewitt, Kercheval & Co., retnrned their final accounts current showing the debit of Ruffner, Donnally & Co., to them or within any reasonable time thereafter, nor indeed, so far as the record shows, until the filing of the bill in this cause in the Spring of 1859 ; and then the claim was not for the value of the salt. And, further, in January, 1857, long after all the facts to this respect were fully known and after Hewitt, Kercheval Co., had rendered their final account's current, Ruffner, Donnally & Co., by their agent Smith, for and on behalf of Ruffner, Don-
. Without deciding tbe abstract proposition ox whether a factor engaged in the selling of salt for another, is guilty of a violation of duty by simply becoming the factor of a third person, without consent, for the sale of salt at the same time and place, I feel constrained to hold, in this case, that it does not appear that Hewitt, Kercheval & Co., under the facts and circumstances disclosed by the record, were guilty of negligence or violation of duty to Ruffner, Donnally & Co., in acting as the factors of Ruffner, Hale & Co., for the sale of their salt in the year 1856. And if they had violated their duty in this respect, they would not thereby necessarily become chargeable by Ruffner) Donnally & Co., with the value of their salt not sold.
The charge in the commissioner’s report against Hewitt, Kercheval & Co., of $1,818.01 and interest $436.32 relating to said six thousand two hundred and sixty-nine barrels of salt sold in 1856, and being the last item in the commissioner’s account “B.” against Hewitt, Kercheval & Co., is clearly not supported, and to a great degree, for the reasons herein stated, in eonsid-ing the charges of forty-one cents per barrel for the same six thousand two hundred and sixty-nine barrels sold in 1856. On the whole, therefore, there was no error in the decree of the court in sustaining the exceptions of Hewitt, Kercheval & Co., to the said report of commissioner Laidley.
The plaintiff filed no exceptions to the report of the commissioner as to the accounts of Hewitt, Roe & Co., or Hewitt, Kercheval & Co., or either of them. The commissioner referred to the court the matter of the record of Houseman, Smith & Co., against Hewitt, Ker-cheval & Co., filed as evidence before him by Hewitt, Kercheval & Co., for its judgment, and the court decided that the amount of the money shown by the said record
It is argued here that it was error in the circuit court to allow Hewitt, Kercheval & Co, this amount or any other amount on account of the recovery of Houseman, Smith & Co., against Hewitt, Kercheval & Co. The facts in relation to this matter as disclosed by the record are substantially as follows, viz : That the instructions of Ruffher, Donnally & Co., to Hewitt, Kercheval & Co., were to sell their salt by the barrel according to the lick weight, deducting therefrom a tare of twenty-five pounds on the barrel. In the year 1855, Hewitt, Kercheval & Co., as the factors of Ruffher, Donnally & Co., sold to Houseman, Smith & Co., twenty-six hundred barrels of salt at forty cents per bushel, according to lick weight, and in accordance with their instructions, as they contend, and delivered, or caused to be delivered, the same to Houseman, Smith & Co. Afterwards, in February, 1856, Houseman, Smith & Co., brought suit to recover damages from Hewitt, Kercheval & Co., on account of the shortness of the -weight of the salt — They alleging that they bought eighteen thousand seven hundred and sixty-six and five-eighths bushels of salt as being contained in said two thousand six hundred barrels, when in fact there was only fifteen thousand nine hundred and forty-two bushels of salt in said two thous- and six hundred barrels.
Hewitt, Kercheval & Co., shortly after said suit was brought, informed Ruffner, Donnally & Co., thereof, and Ruffner, Donnally & Co., by their agent, were informed of the suit by letter, and during the pendency thereof allowed and paid, without objection, some costs incurred
The general doctrine seems to be that if an agent has, at the express or the implied request of his principal, necessarily incurred expenses in carrying on or defending suits, for the benefit of his principal, these expenses must be borne by the latter, and the agent will be entitled to'recover them from him. And if an agent has, without his own default, incurred losses or damages, in the course of transacting the business of his agency, or in following the instructions of his principal, he will be entitled to full compensation therefor. Story on Agency secs. 235 and 339 and cases there cited. It is not every loss or damage, for which the agent will be entitled to re-imbursement from his principal. The latter is liable only for such losses and damages as are direct and immediate, and naturally flow from the execution of the agency. If, therefore, the losses or damages are casual, accidental, oblique or remote, the principal is not liable therefor. In short, the agency must be the cause, and not merely the occasion, of the losses or damages, to found a just right to re-imbursement. Story on Agency see. 341.
Ruffncr, Donnally & Co., had no information touching the said suit or its merits before the trial thereof, except such as they derived from Hewitt, Kercheval & Co., by letter, and of course what they said and did in relation thereto, by letter or otherwise, was on the faith of the correctness of that information. So far as I can see
The firm of John J. Koe & Co. was formed about 1st
Roe &Co., during said month, sold forty barrels of the salt turned over to them for which they rendered an account to Ruffner,- Donnally A Co., about the-day of January, 1857, in which it will be seen that they charge on each barrel sold 25 — 8 cents, that is to say seventeen cents per barrel according to the arrangement to which I have before alluded. Also on the-day of January, 1857, they rendered to Ruffner, Donnally A Co. an account current to date, stating their charges against Ruff-ner, Donnally A Co. for cooperage and other things in the commissioner’s report mentioned. To this account current and report of sales no objection appears to have been made or pointed out, in any reasonable time, nor indeed till long after the commencement of this suit.
Afterwards, in October, 1857, John J. Roe & Co., had and made a full adjustment and settlement of their accounts and claims, and of the salt placed by Hewitt, Roe & Co., in the hands of country agents &c., with plaintiff Lewis Ruffner and said John B. Smith, agent of Ruffner, & Co., and upon settlement and adjustment the said Smith with the full knowledge and consent of said Ruffner, in consideration of the sum of $2,000.00 paid by said Roe & Co., to Ruffner, Donnally & Co., gave to said Roe & Co., a receipt in full settlement of all claims against them and against Hewitt, Roe & Co., and relin • quished and transferred to them all notes, accounts, salt held by country agents, and all evidences of indebtedness to Ruffner, Donnally & Co., or to them for or on account, growing out of previous transactions with them as the agents of Ruffner, Donnally & Co., for the sale of
I have hereinbefore ascertained and stated the amount ■of salt on hand in St. Louis, and in the hands of country agents, shipped by Hewitt, Kercheval & Co., notes, bills, &c., that were transferred from John J. Boe & Co. to
The first exception is as to the several items making the said $23,750, of acceptances of Hewitt, Kercheval & Co., and the exception is that “Ruffner, Donnally & Co., without express promise in writing, are not bound to pay the debt of another, nor had Hewitt, Kercheval & Co., on which to base on the part of Humphrey, Tutt & Terry, a promise to pay their acceptances, because the transaction was fraudulent on the part of Hewitt, Ker-cheval & Co., and Humphrey, Tutt & Terry must look to Hewitt, Kercheval & Co., for their compensation. And Ruffner, Donnally & Cods exception to the several items making said $30,000.00, being acceptances by Humphrey, Tutt & Terry, of ten bills drawn by J. B. Smith, as agent of Ruffner, Donnally & Co.; that the bills were drawn after the partnership of Ruffner, Don-nally & Co., had expired by limitation, and while the Company only existed for the purpose of winding up and closing its business, all of which was known to the acceptors, as shown by the evidence in the caused’ At the time of the transfer of the agency from Hewitt, Kercheval & Co., to John J. Roe & Co., by Ruffner, one of the plaintiffs, and approved, ratified and sanctioned by said Smith, as the agent of Ruffner, Donnally & Co., having full control of their salt business at St. Louis, and in the West, generally, the said debt to Hewitt, Kercheval & Co., was known and fully recognized by both Ruffner and said Smith, and it was a part of the contract and arrangement of transfer of the agency, so ratified and sanctioned by said Smith, that John J. Roe & Co., should pay to Hewitt, Kercheval &• Co., or in their relief by way of advancement to Ruffner, Donnally & Co., the said $23,750.00. Before the $23,750.00 was paid by John J. Roe & Co.; the agency was trans-
This leads me to the enquiry, as to whether the said debt of $23,750 was, in point of law and justice, the debt of Ruffner, Donnally & Co. In other words, if Hewitt, Kercheval & Co. had paid said acceptances, in lieu of Humphrey, Tutt & Terry, could Hewitt, Kercheval & Co., have recovered the same from Ruffner, Donnally & Co., at law or in equity?
At the expiration of the year 1855, we have seen that Ruffner, Donnally & Co., had a large amount of salt on hand in different parts of the country, as well as choses in action, and, perhaps, other property undisposed of and unsettled, and that their indebtedness was very large.
I do not decide the question of law as to whether the expiration of the partnershi p per se revoked the agency and powers of John B. Smith, under said power of attorney, because it is unnecessary.
I am satisfied from the evidence, papers and exhibits in this cause, and the law bearing on the subject which
I think the fourth exception of Buffner, Donnally & Co. is not well taken. Humphrey, Tutt & Terry are charged with this item in the $11,734.20 of amount realized from salt in the country shipped by Hewitt, Ker-ch eval & Co.
The fifth exception of Buffner, Donnally & Co., so far as relates to the amount allowed on the seven thousand seven hundred and sixty-eight barrels of salt and the four thousand three hundred and six barrels for reasons hereinbefore stated is not well taken.
So much of said exception five, as relates to the residue of the said six thousand six hundred and sixty barrels of salt, after deducting the four thousand three him-dred and six barrels, which is called two thousand five hundred barrels in said exception, but which is in fact two thousand three hundred and fifty-four barrels. I will further consider, when I dispose of the questions arising upon the face of so much of the decree appealed from as refers the cause as between Buffner, Donnally & Co. and Humphrey, Tutt & Terry.to ¥m. H. Hogeman as special commissioner for an account and directs the basis on which he shall make the same.
The defendants Humphrey, Tutt & Terry also filed exceptions to the report of commissioner Laidley, to exhibits B. and C. thereof, which exceptions I think are mostly though perhaps not altogether, well taken. The charge of six thousand six hundred and sixty barrels of salt $2.37 per barrel is not authorized by the evidence;
I have said nothing of the drayage charged by Humphrey, Tutt & Terry, on salt sold in the city, but the charge for drayage on salt sold from place of storage, ought not to be allowed in addition to commission.
Humphrey, Tutt & Terry should be charged for the four thousand three hundred and six barrels of salt sold in St. Louis, the amount received for it, deducting proper commissions and other charges and expenses, above indicated. I do not think they should be allowed more than seventeen cents commission on the barrel for this four thousand three hundred and six barrels, as the dray-
Sometime in the year 1858 and after the account had been returned to John B. Smith, and also to Ruffner, Donnally & Co.’s agent at Kanawha, and after the same was objected to, Mr. Broadwell, one of the firm of Humphrey,Tutt & Terry, with drew the account from both places, with the view of making changes and corrections, and
It does not appear from the evidence that more than the nine hundred and forty-three barrels of the one thousand seven hundred and seventy barrels sent to the country has been sold l>3r the persons to whom shipped, or if sold, paid for by the persons in the country to whom it was so shipped. The three hundred and fifty barrels of salt sunk in the Missouri river and the fifty barrels shipped to Mize together with the said one thousand seven hundred and seventy barrels makes two thousand one hundred and seventy barrels of salt testified to by Huffner, Jr. Said Lewis Huffner Jr., in his deposition also testifies that at the time said salt was shipped the Missouri river was low, and freights high, and that the shipment of the salt was ill-advised; and his deposition shows that the freight on the salt, so shipped, for shaping it to the country was from seventy cents up to as high as $2 per barrel and that the salt was shipped in July and August, 1857. The commissioner has not charged Humphrey, Tutt & Terry with the said $514.05 or any part thereof, in the account or statement as presented by him with his report as to the accounts of Humphrey, Tutt & Terry, or with any part of the two thousand three hundred and fifty-four barrels of salt, residue of the six hun
Joi-iN B. Smith, Agent.”
I am unable to discover from the record that Humphrey, Tutt & Terry ever informed Buffner, Donnaiiy & Co. as to what disposition they had made of the two thousand one hundred and seventy barrels of salt shipped by them to the country or any part thereof prior to the filing of their answer. There has unquestionably been a considerable loss by the shipment of the two thousand one hundred and seventy barrels of salt, as aforesaid, by Humphrey, Tutt & Terry and it must be determined who should under the circumstances sustain that loss, Humphrey, Tutt & Terry or Buffner, Donnaiiy & Co. A factor is bound not only to good faith but to
The counsel for Humphrey, Tutt & Terry in their exceptions suggest that account as shown in exhibit A. be corrected by the court as follows, viz: that Ruffner, Donnally & Co. be charged with the $25,482.98, as of September, 1860, as stated and then credited with $514.03, the amount received for the said nine hundred and forty-three barrels and also credited with $877, the net value of eight hundred and seventy-seven barrels of the salt unsold at $1. per barrel. This would make up the one thousand seven hundred and seventy barrels but leaves out the three hundred and fifty sunk and the fifty shipped to R. S. Mize, as shown on pages five hundred and thirty-eight, thirty-nine and forty of the printed record. I find an account headed “Final Settlement”“Messrs. Ruffner, Donnally & Co. In account and interest with Humphrey, Tutt & Terry.” This purports to be a final account current between Ruffner, Donnally .& Co. and Humphrey, Tutt & Terry, and ascertains the balance due from Ruffner, Donnally & Co. to Humphrey, Tutt & Terry on the 1st day of January, 1859, to be $19,08.46 and it is certified by Geo. D. Humphrey, as a correct and final settlement of the account of Ruffner, Donnally & Co. in account and interest with Humphrey, Tutt & Terry up to and closing with the 1st of January, 1859, and the account purports to have been sworn to before a notary public. In this account current Humphrey, Tutt & Terry are charged with the net proceeds of seven thousand seven hundred and sixty-eight barrels as per sales rendered $11,734.20; also net proceeds of sale of four thousand three hundred and six as per sales ren
There is nothing in the record that indicates when this account was filed, nor is it stated by whom it was filed. Of it the record says: “the following is a copy of the final settlement of Humphrey, Tutt & Terry’s account with Ruffner, Donnally & Co. and filed with the papers of this cause.” It purports to have been sworn to before a notary public on the 12th of December, 1868, and the decree appealed from was rendered the 6th of July, 1869. No exceptions arc filed to this account. I do not attach much importance to this account; nor do I base my conclusion upon it. I simply refer to it as being a part of the record as presented here. The record is made up without regard to system and is in a mixed and confused condition, and as a consequence it is exceedingly difficult to ascertain what part of the j)apers were filed before the decree appealed from and what part afterwards, as well as to arrive at the facts of the case.
After much consideration of the tacts and peculiar circumstances apjiearing in the case, I have arrived at the conclusion that Humphrey, Tutt & Terry should be charged in the settlement of their account with the value of the two thousand one hundred and seventy barrels of salt at St. Louis, of Ruffner, Donnally & Co., shipped by Humphrey, Tutt & Terry, from St. Louis, in July and August, 1857 — I mean its value in the condition it then was, as near as may be. Humphrey, Tutt & Terry should not be allowed drayage for taking this salt from storage to place of shipment. This would still leave one hundred and fifty-four barrels of the six thousand
I am further of the opinion that the court, in that part of its decree which refers the cause to a special commissioner and prescribes the basis on which he shall make inquiry and report, should have directed the commissioner to charge Humphrey, Tutt & Terry in the account with the value of said two thousand one hundred and seventy barrels of salt at St. Louis, in the condition it was when shipped therefrom in July and August, 1857, as nearly as may be.
All questions not herein passed upon, which arise or may arise, in this cause, hereafter, are left open, for consideration and adjudication.
For these reasons the decree rendered in this cause by the circuit of Kanawha county, on the 6th day of Jidy, 1869, must be reversed and annulled and the appellants recover against the appellees, Robert M. "V. Kercheval surviving partner of Hewitt, Kercheval & Co., and the appellees composing the firm of Humphrey, Tutt & Terry, their costs expended about the prosecution of this appeal.
This Court proceeding to render such decree in the . t, . . ■, T ■cause as the said circuit court shall have rendered, upon the papers, proceedings theretofore had, the and other papers filed, the reports and accounts of commissioner A. T. Laidley and the papers and other evidences filed therewith, the exceptions of Hewitt, Noe & Co., of Hewitt, Kercheval & Co., John J. Noe & Co., Humphrey, Tutt & Terry, defendants, and the exceptions of the plaintiffs Nuffner, Donnally & Co., to said reports read by said circuit court — it is adjudged, ordered and decreed that the exceptions of the said Hewitt, Noe & Co., Hewitt, Kercheval & Co., and John J. Noe Co., and each of them, to said reports of said commissioner Laidley, and each part thereof, be sustained, and that the plaintiffs’ bill, as to them, and each of them, be dismissed, and that said Nobert M. V. Kercheval surviving partner of the said firm of Hewitt, Kercheval & Co., John J. Noe & Henry J. Moore composing the firm of John J. Noe & Co., recover against the plaintiffs their costs about their defence of this cause expended, and that the exceptions of the plaintiffs filed to said commissioner’s report, and each of them, except No. 5, be overruled and that said exception No. 5 as to two thousand one hundred and seventy barrels of the salt therein mentioned be sustained. And that this cause, as to the plaintiffs and the said firm of Humphrey, Tutt & Terry and the other defendants as to whom the plaintiffs’ bill is not herein dismissed, be remanded to the said circuit court of the county of Kanawha with instructions to said court to refer the cause as between Nuffner, Donnally & Co., and the defendants Humphrey, Tutt & Terry to a commissioner to ascertain, settle, state and report the accounts between Nuffner, Donnally & Co., and the defendants Humphrey Tutt & Terry upon, and according, to the principles and matters settled and ascertained in this opinion, so far as relates to them, and otherwise as may
Decree Reversed asd Suit ReiíaNDEd.