104 Ga. 362 | Ga. | 1898
The case turns upon the proper legal construction to be given the written agreement or contract between Arbuckle Brothers and Allen. If, as contended by the defendants in error, the legal effect of the paper in question is to create between the parties thereto the relation of principal and factor, the latter selling the goods of the former under a del credere commission, then Arbuckle Brothers are entitled to the funds in the hands of Allen’s assignee, arising from accounts against customers to whom Allen had sold goods consigned to him by the Arbuckles. If, on the other hand, this paper, properly construed, rendered the relation of the parties that of vendor and purchaser, then Arbuckle Brothers were not entitled to the proceeds of these accounts. The contract is certainly a very extraordinary one and contains seemingly contradictory provisions. Some of its stiplations, if construed only in connection with others of a kindred nature, seem to indicate the creation of a del credere agency. Other stipulations, taken in connection with those which readily harmonize with them, clearly show a contract of sale. It appears to have been drawn for the purpose of enabling Arbuckle Brothers to “run with hare ” or “hold with the hounds,” according as, in the exigencies of a given case, their interest might dictate. On the one hand, to
Under the fifth clause of this contract, Allen was bound to remit to Arbuckle Brothers, at fixed times, the full price of each consignment, without regard to payments made to him by the customers to whom he sold the goods, or the terms upon which he sold to such customers, and without regard to whether any sales had been made by him or not; and he was bound, at such fixed times, to remit to the Arbuckles at a price fixed by them to him at the time when the goods were consigned to him. Allen’s obligation, then, was radically different from that of a mere del credere agent; for he did not simply guarantee to
When we further consider that no account of sales was to be rendered by the so-called “factor” to his alleged principals; that he was not required to furnish to them the names of the parties to whom he sold upon a credit and the terms of the credit which he extended, nor to report or transmit to them the evidences of indebtedness, if any, which he received from such customers; that no matter how much cash he might accumulate from sales within the sixty days, he was under no obligation to remit it to them until the sixty days had elapsed, and then was bound to remit, not simply as a del credere agent accounting to his principals for the money of such principals in his hands and for the amount of matured indebtedness against customers who had failed to meet their obligations, but to remit the whole amount of the entire consignment; and that discounts, such as are usual in cases of sales upon time, were to be allowed upon all bills paid before the expiration of sixty days from their dates, the conclusion seems unavoidable that the true legal relation between the parties to this agreement was that of vendors and vendee. The stipulation that the title to the goods should remain in the Arbuckles until Allen had paid for them is not inconsistent with a contract of sale. It might make the sale, as between the parties, to that extent conditional. The seller of personal property often stipulates that the title thereto shall remain in him until the purchase-price is paid. As Allen wanted the goods for the purpose of reselling them at retail to his customers, if the stipulation had gone to- this extent it would have seriously hampered his business and caused him to lose the benefit of the sixty days credit extended to him. The stipulation in question may, therefore, be treated as simply an effort on the part of the vendors to retain the title until the vendee had either sold the goods or paid for them, the retention of title, by express provision, ceasing when he sold the goods, and by necessary implication ceasing when he paid for them. Nor is the fact that Allen was to sell the goods at prices fixed by Arbuckle Brothers
How aptly the Lord Justice’s illustration of the impossibility of the existence of any right in Towle & Co. to demand the proceeds of cash sales from Nevill applies in the case at bar. To such a demand upon the part of Arbuckle Brothers Allen could have replied: “No, under the bargain between us, I am not to give you any account of sales at all. I am simply to pay you for the goods at the end of sixty days. ‘ My selling for hard cash does not alter the nature of the bargain between you and me, or entitle you to call upon me to hand the moneys over to you, or to put the moneys in medio and keep them for you.’ ” In the same case from which we have quoted, Mellish, L. J., said: “It is quite clear that Nevill, if he sold these goods, was to pay Towle & Co. for them, at a fixed price —that is to say, a price fixed beforehand between him and them — and at a fixed time. Now, if it had been his duty to sell to his customers at that price and to receive payment for them at that time, then the course of dealing would be consistent with his being merely a del credere agent, because I apprehend that a del credere agent, like any other agent, is to sell according to the instructions of his principal, and to make such contracts as he is authorized to make for his principal; and he is distinguished from other agents simply in this, that he guarantees that those persons to whom he sells shall perform the contracts which he makes with them ; and therefore, if he sells at the price at which he is authorized by his principal to sell, and upon the credit he is authorized by his principal to give, and the customer pays him according to his contract, then, no doubt, he is bound, like any other agent, as soon as he receives the money, to hand it over to the principal. But if the consignee is at liberty, according to the contract between him and the consignor, to sell at any price he likes, and receive payment at any time he likes, but he is bound, if he sells ihe goods, to pay the consignor for them at a fixed price and at a fixed time&wkey;in my opinion, whatever the parties may think, their relation is not that of principal and agent. The con-tract of sale which the alleged agent makes with his purchasers
The case of Ex parte White was relied upon in Nutter v. Wheeler, 2 Low. Dec. 346, in which the facts were these: “The-defendants were manufacturers of machinists’ tools at Worcester, and Gear had a shop in Boston, where he sold such tools, among other things. The defendants were in the habit of sending their manufactured goods to Gear, and he sold them. at such prices and to such persons and on such terms as he pleased, not less than the trade prices fixed by the defendants; whenever he sold any tools, and not before, he was to pay the-defendants, in thirty days, the prices shown in the list, less an. agreed discount. The defendants had the right to sell any goods which at any time remained in his shop unsold, and he was permitted to sell any of their goods at the factory, and the-defendants would then deliver them according to his order,,
It was not until this court had arrived at its conclusion, and the above opinion had been written, that it came to our knowledge that an instrument the provisions of which were identical, in every respect, with the one which we have been considering, had been recently construed by the Supreme Court of Tennessee, in Arbuckle Bros. v. Kirkpatrick & Co., 98 Tenn. 221. In that case Kirkpatrick & Co. had failed, and assigned all their accounts, goods on hand, etc., to certain assignees, to pay sev
Judgment reversed.