Sigerson v. Pomeroy

13 Mo. 620 | Mo. | 1850

RYLAND, J.

From the above statement, the points necessary for our adjudication arise from the instructions given, as well as those refused by the court below. The general principles involved in this case will not be disputed. The factor must strictly follow the orders and instructions of his principal, and a departure from them will be at his own risk. If the factor shall, with proper care and diligence, faithfully and bona fide carry out the orders of his principal, and notwithstanding he does this, a loss shall still accrue, this loss must fall on the principal. The factor’s making advances upon the shipments made, does not withdraw from him the necessity to obey the directions accompanying the commodity which he received for shipment.

In the case now before us, the plaintiffs below contend that they obeyed the instructions of the defendant, Sigerson, in regard to the shipping of the lard ; by sending the letter of Sigerson which had been addressed to them, to Andrews & Brother, commission merchants of fair standing at the time in Hew Orleans, to whom they had consigned the lard. While on the other hand, Sigerson contends, that Pomeroy & Andrews did not obey his directions, that although they forwarded his letter to their consignees, yet it was accompanied with other directions, orders, conditions and requirements, which caused a violation of the directions given by him to Pomeroy & Andrews.

Whether Pomeroy & Andrews did obey these directions, by giving the same to their consignees in New Orleans ; or whether they departed from them or altered them, by adding conditions or requirements inconsistent therewith, was a fact to be left to the finding of the jury, and the first instruction which the court gave on the part of the defendant, embraced this subject. We do not feel ourselves at liberty to disturb this finding, however we might differ from the jury in reaching the conclusion they did in this case.

We find no fault with the first instruction given by the court for the plaintiffs below, and shall therefore pass it by.

We do not assent to the second instruction for the plaintiffs in this case. It has a tendency to withdraw from the jury the inquiry as to the connection between Pomeroy & Andrews and Andrews & Brother, whether there was a partnership or not in the profits and losses arising from the shipping and forwarding produce generally. It also took from them the inquiry, whether the plaintiffs in this action were the agents or not as they stood between Andrews & Brother and Sigerson, in this business; and whether the lard was lost by a violation of Sigerson’s orders, caused by the plaintiffs or not. We think this instruction as it stands, might mislead the jury, and was, therefore, improper.(^a)

The refusal of the court to give the 3rd instruction asked for by the defendant, as marked in the above statement, is in our opinion erroneous. This instruction contains a correct legal proposition, and was applicable to the facts in proof and ought to have been given to the jury.

If Pomeroy & Andrews only advanced money got from the sale of bills drawn by them on Andrews & Brother on the shipment of Sigerson’s property ito Andrews & Brother, and Andrews & Brother received the shipments and thus were in receipt or possession of the fund drawn on, then Pomeroy & Andrews could have no claim on Sigerson without showing, that the bills, or some of them, have been dishonored, and that they paid, or became liable to pay the same.

In our opinion, then, without taking notice any further of the instructions, the judgment of the court below is erroneous. The motion for a new trial should have been sustained. The judgment is therefore reversed and cause remanded.

Judge Biech concurring herein.

a (a) Ball v. Sigerson, 24 Mo. R. 53.