94 Minn. 225 | Minn. | 1905
Upon the complaint of Charles F. Staples, a member of the State Railroad & Warehouse Commission, defendants, commission merchants doing business at Duluth, were charged with having violated the provisions of section 2, c. 225, p. 246, Daws 1899, in failing to render a true statement to the consignor concerning a consignment of flax. A plea of not guilty was entered, and the trial resulted in a verdict of guilty. The case is brought here upon appeal by defendants from an order denying their motion for a new trial.
It is undisputed that the consignor, Victor Carlson, resided at Ballock, Minnesota, and shipped a carload of flax to defendants at Duluth, to be sold by them on commission; that the car was shipped from Hal-lock, January 14, over the Great Northern Railroad, reaching Duluth January 19, 1903. Carlson made a draft upon defendants for $700, attached the bill of lading, and sent it through a bank for collection. The flax was inspected January 19 at Duluth, and was ready to be sold upon the market that day. The evening of January 19 defendants wrote consignor the following letter:
Duluth, Minn., Jany. 19th, 1903.
Mr. Victor Carlson,
Hallock, Minn.
Dear Sir: — We have received the following car of flax from you today, which inspected and sold (subject to comparison with sample) for your account and risk as stated below:
Oar No. Initial Grade Sold at How sold
21048 G. N. No. 1 Flax 14% 119%
The market was a very narrow one all day and above was best price. Acct. sales & check to balance will follow as soon as unloaded. Trusting same is satisfactory, and awaiting your further orders, we remain,
Yours truly,
Edwards, Wood & Co.,
Geo. K. Taylor, Mngr.
Duluth, Minn., Jan. 22nd, 1902.
Account sales of Edwards, Wood & Co., Grain Commission Merchants, 310 Board of Trade.
Account of Victor Carlson,
Hallock, Minn.
Date Unloaded Oar Grade Freight Date Sold Gross Weight
Jan. 21 21048 Flax 83.34 1-19 980.10
No. 114%
Shrinkage by cleaning Net Weight Delivered Price Amount
137.12 842.54' . 119% $1007.33
75
Freight and Insx>ection.............................. $83 09
Weighing .......................................... 25
Interest ...........................................
Insurance ......................................... 40
Commission %% .................................... 5 04 88 78
918 55
700 00
Balance to your credit......................■.........$218 55
January 20, defendants sold the carload of flax to the Hall Elevator Company at Duluth at $1.20 per bushel, an advance of one-half cent, but of this sale made no report to consignor. Defendants claim the sale was made to. themselves at the close of the business day, January 19, and that the letter of that date, and the account stated, of date January 22, constituted a report of the transaction within the requirement of the statute. Defendants further claim that there was a subsequent ratification of the transaction by the consignor.
At the trial, the court instructed the jury that, when grain is consigned to commission merchants to be sold upon commission, it is their duty to sell it in the open market for the best obtainable price, and remit to the shipper the amount of the sale, less commission and necessary disbursements; that commission merchants have no right, when grain has been consigned to be sold on commission, to themselves purchase it, and that an attempt so to do is not binding upon the shipper ; that if such an attempt is made, and thereafter the grain is sold to
The court refused to instruct the jury, upon request of defendants, to the effect that they were not guilty if the jury should find that the duly authorized agent of defendants sold the carload of flax to them, paying therefor the highest market price of that date, and duly reported the same to the consignor within twenty four hours thereafter. The court also refused to' instruct the jury that if such sale was made to defendants in accordance with the usages and customs of the Board of Trade at Duluth, at the highest price obtainable on that day, and duly reported the same to the consignor within twenty four hours thereafter, and the consignor did not within a reasonable time thereafter repudiate the transaction, then such act would constitute ratification by the consignor.
.Error is also assigned in refusing defendants’ offer to prove it was the custom among members of the Duluth Board of Trade to purchase for themselves consignments of grain shipped to them to be sold upon commission at the highest market price for the day, in the event that other purchasers could not be obtained. The instruction of the court to the following effect is also questioned:
The offense charged is that of omitting to perform a positive duty enjoined upon commission merchants by the law of the state, and it is immaterial whether the defendants actually knew anything about the transaction, if the grain was shipped to them to be sold upon commission, and was sold by them, or by any authorized person acting for them, on commission.
Section 1, c. 225, p. 245, Laws 1899, defines the purpose of the act, and declares it to be unlawful to do business without procuring a license and giving a bond for the benefit of persons intrusting commission merchants with consignments; that, if such commission merchant re
The law does not prohibit defendants from engaging in the business of directly buying and dealing in grain, but, so far as shown, they did not take advantage of that privilege and take out a license for that purpose. Having held themselves out as commission merchants to sell grain on commission, defendants entered into an obligation to- use their knowledge and position in disposing of the grain for the greatest benefit of their patrons, and were required to take all reasonable and usual means and precautions to dispose of the grain to the best advantage of the consignor immediately upon its arrival; and if for good reason they failed to dispose of it on the day of its arrival, and it was necessary to sell it at private sale after business hours of the board of trade,, or to carry the grain over the day, the same duty followed them, and they were still required to exercise reasonable diligence on behalf of the shipper. They could not shift such responsibility by bidding in the property for themselves after business hours, and subsequently turn it over to some one else at a profit, and not be held accountable therefor. The record conclusively shows that on the following day the car of flax, without being unloaded, was disposed of by defendants to the Hall Elevator Company at an advance of one-half cent a bushel. Under the law of agency such sale inured to the benefit of defendants’ principal, and the attempted sale to themselves, as testified to by their agent, was prima facie a nullity.
We cannot accept as applicable to this case' the proposition that, if the shipper made no protest after receiving the report of the alleged sale and the proceeds thereof, he thereby accepted and ratified the sale. On the other hand, it was the duty of defendants to clearly show that
The complaint charged that defendants wilfully and unlawfully neglected and failed to render the statement within the time required, but, on the contrary, wilfully and unlawfully made and rendered to the consignor a false report and statement in writing, in and by which they pretended and represented they had sold the flax for the sum of $1,007.38, whereas in fact they sold it for $1,011.54. The gist of the offense is one of omission in failing to render a true statement to the consignor showing what portion of such consignment had been sold, the price received, and the name and address of the purchaser, the date, hour, and minute when such sale was made, with vouchers for all charges and expenses paid or incurred; and defendants were put on trial upon that charge, and none other. The statement in the complaint that they wilfully made a false report was unnecessary, and mere surplusage.
Upon the trial, however, in support of the offense charged, it was proper to prove what reports were made, and that such reports were not those required by law. Defendants’ business- was conducted through their local manager, and, it may be admitted, were acting in good faith, in accordance with the custom of commission merchants in Duluth, and the agent may in good faith have been endeavoring to comply with the law in making the stated reports, but the question of good faith or intent is not involved in this action. If, under such circumstances, a sale to themselves was unauthorized and prohibited, defendants could not avoid the effect of the statute in failing to report the sale which they did make, no matter what their intentions may have been.
In State v. Robinson, 55 Minn. 169, 56 N. W. 594, it was held that the. owner of a drug store was not liable for a sale by one of his clerks,
In this connection the case of State v. O’Connor, 58 Minn. 193, 59 N. W. 999, may be considered, wherein it was held that, in order to excuse himself from liability for permitting a saloon to be kept open on • Sunday, the master would have to show that it was opened against his will, and notwithstanding all reasonable efforts by him to keep it closed. The question of intent is not material in this class of statutory offenses. As remarked by Judge Cooley in People v. Roby, 52 Mich. 577, 18 N. W. 365, such statutes are in the nature of police regulations, and impose a penalty irrespective of intent to violate them, the object being to require a degree of diligence for the protection of the public which shall render violations impossible. The statute makes the act criminal without regard to intent. State v. Heck, 23 Minn. 549.
For the reasons already stated, it was immaterial that it was the custom among commission merchants at Duluth to buy grain at the highest figure for the day, in case not sold on the market. They could not make that lawful which was unlawful, and it was just such irregularities that the statute was intended to correct.
The law under consideration is assailed upon the ground that it is in violation of the -federal constitution, as an interference with interstate commerce. In State v. Wagener, 77 Minn. 483, 80 N. W. 633, 778, 1134, this law was declared to be not in conflict with the fourteenth amendment of the federal constitution, nor with section 2 or 7, article 1, of the state constitution. The court at that time, after exhaustive argument, put at rest all of the questions touching upon the constitutionality of the law, except possibly an intimation that the statute did not apply to interstate business, but what was stated in the opinion on that point was by way of precaution or reservation only.
In the case before us, the consignor resided within the state, but, to our minds, that fact is not significant. The law applies to all shipments,
This cause was submitted to the jury upon the right theory, and we find no error in the instructions or rulings.
The order appealed from is accordingly affirmed.