Silverman v. Bush

| Ill. App. Ct. | May 29, 1885

McAllister, J.

The rules of law dedncible from the numerous authorities cited by the counsel for the respective parties, are, so far as applicable to one branch of this case, accurately stated by Chancellor Kent in his Commentaries, to this effect: Though the factor can not pledge the goods of his principal as his own, yet he may deliver them to a third person for his own security, with notice of his lien, and as his agent to keep possession for him. Such a change of the lien does not divest the factor of his right, for it is in effect a continuance of the factor’s possession. 2 Com. *p. 626; McCombie v. Davis, 7 East, 11; Urquhart v. McIver, 4 Johns. 103" date_filed="1809-02-15" court="N.Y. Sup. Ct." case_name="Urquhart v. M'Iver">4 Johns. 103; Nash v. Mosher, 19 Wend. 430.

The evidence tended to prove a state of facts from which the court, sitting as and in the place of a jury, for the determination of facts, and as a court to apply the law to them, might have found that Crain, the factor, had acquired a lien on the goods in question for advances made by him to his principals, to the sum of three thousand dollars at their special request. But whether the court so found, we can not from the record and the manner in which the case was tried, ascertain. Assuming, however, that the court did so find, because the evidence justified it, then the next step in an attempt to analyze the case would naturally be to get at the nature of the transaction between Crain, the factor, and Silverman, the banker, and defendant in the case, in respect to the goods, for the wrongful conversion of which by him, this suit was brought and a recovery had. If Crain gave Silverman notice of his lien and merely placed the goods in his possession to hold to the extent of that lien, and as a substitute for him (Crain), we are of opinion that such transfer or change of lien was lawful, and Crain’s right was not thereby divested. But if, on the contrary, Crain gave Silverman notice of his' lien, or of the facts that gave rise to it, but pawned the goods of his principals as his own goods, then no matter how innocent Silverman’s intentions might have been, such pledging was» in the eye of the law, a tortious act, and the principals could maintain trover against Silverman without any previous demand upon him for the goods. McGombie v. Davis, 6 East; 538.

We fail to discover from anythingpnJfiia-reeoKiriLe-wiewtmL theory upon which fhe ’case was tried as regards the points just adverted to. The plaintiffs below were permitted, without any objection on the part of the defendant, to prove that defendant, after the commencement of this suit, had sold the goods in question to another party.. We are strongly inclined to believe from an examination of the record, that such sale was relied upon by plaintiffs’ counsel, and regarded by the court, as constituting a wrongful conversion of the goods, whatever might have been the conclusion as to the nature of the transaction between Crain and Silverman, and even though the plaintiffs had with full knowledge ratified the acts of Crain in pledging the goods. The fact of such sale, after the commencement of the suit, could have no legitimate effect upon the rights of the parties, and should not have been brought into the case at all. Storm v. Livingston, 6 Johns. Ft. 44. Excluding from the case that fact, and we are of opinion that the finding the defendant guilty of a wrongful conversion of the goods in question was against what we conceive to be the clear weight and preponderance of the evidence, upon the defense of ratification by the plaintiffs, of the acts of their agent, Crain, in the premises. Robbins, one of the plaintiffs, was the manager of their business. S)mething more than a week before this suit was brought, he became cognizant of all material facts in respect to the borrowing money of Silverman and pledging the warehouse receipts to him by Crain. The latter had, before this, borrowed money with which to make advances to his principals, of another banking house, and pledged other warehouse receipts for goods belonging to said principals as security therefor. Robbins, on being fully informed of this latter transaction, had fully approved of Crain’s acts, repaid the money so borrowed and redeemed the pledge. On the heels of that transaction came this matter with Silver-man, and Robbins, having inquired into the matter to some extent, and become aware of the material facts in respect thereto, told Crain that he would pay what had been borrowed of Silverman, and redeem the goods.

He accordingly, in a short time afterward, went to Silver-man, undoubtedly for the purpose of carrying into effect what he had told Crain he would do. He wanted to see all the papers and know all about the transaction, both as to amount borrowed and the quantity, etc., of the goods held in pledge. After getting this information he told Silverman he was going to pay up and wanted the goods.

How, here there was full knowledge of all material facts; the acts to be ratified were of a character capable of ratification. The plaintiffs had received the money for which the goods were pledged. It was obtained at their urgent request) and for the purpose alone of accommodating them. In such a case the acts of the principal are to be construed liberally in favor of the adoption of the acts of an agent: Codwin v. Hacker, 1 Caine’s R. 526; Dunlap’s Paley on Ag. 171. Slight circumstances and small matters will sometimes suffice to raise the presumption of ratification. Story on Ag. § 253, and cases in notes; Cairo & St. L. R. R. v. Mahoney, 82 Ill. 73" date_filed="1876-06-15" court="Ill." case_name="Cairo & St. Louis Railroad v. Mahoney">82 Ill. 73.

If the principal ratifies and adopts the agent’s acts even for a moment, he is bound by them: Ewell’s Evans on Ag. 85; Smith v. Cadogan, in note in 2 Term R. 189.

We think thp ends of justice require that there should be a new trial in this case. The judgment will therefore be reversed and cause remanded.

Judgment reversed.