Kauffman v. Beasley

Moore, Chief Justice. It is, we think, well settled that cotton factors and general commission merchants in [568] Galveston, such as Dublé & Wooters, had no authority as such by law, or by any usage or custom of trade shown in the record, to deal with cotton consigned to them, otherwise than by its sale for cash in Galveston. They had no authority to sell upon credit cotton of their principals, entrusted to them for sale, orto dispose of it in the way of barter, or to-entrust its sale to others, or to pledge it as a security for an advance of money to themselves, or to ship it to a foreign market, or to deal with it in any way for their own instead of their principal’s benefit. Persons dealing with factors concerning goods entrusted to them are charged With notice of the extent and limitations-upon their powers. And if they deal with them as if they were acting for themselves, or as if they were dealing with their own property, such persons do so at their peril that such is the fact, or that the factor has special authority from the owner, or that by the well established and recognized usage and customs of trade in that fine, the factor is authorized to deal with and dispose of the goods in the manner proposed. If the transaction is brought in question by the owner of the goods, the bur-then of proving the factor’s authority is upon the party dealing with them. Applying these well established principles of law to the facts in this case, the judgment of the district court is obviously correct. The plaintiff Beasley’s title to the cotton was fully proved. Indeed it was not controverted or disputed that Kauffman, by the advance which he made to Dublé & Wooters upon the cotton, acquired no interest in it, or right to the possession or control of it for himself, or as the agent and representative of Melley, Forget & Go., on whose behalf he claims to have acted. Had the cotton remained in his possession in Galveston, and he had refused to surrender it to Beasley when demanded, he would without doubt have been liable to an action for its value. He is charged by law with knowledge that by [569] the advance made to Dublé & Wooters he obtained the wrongful possession of Beasley’s property. And when he made use of this wrongful possession by shipping it to a foreign market to be sold by Melley, Forget & Co. for the payment of the money for which it had been thus wrongfully pledged, thus placing it out of his power to restore it to the owner, he was guilty of its conversion, and subjected himself to an action for its value, even though he had no personal interest in the transaction, but was acting in the interest and for the benefit of others. As Kauffman was liable for a conversion of the cotton, its demand was unnecessary to the maintenance of the suit. If the court erred in overruling the objection to the proof of the demand, it was therefore a matter of no moment, and in no way affected the proper decision of the case. We are of opinion, however, if proof of demand were essential, the ruling .of the court was correct. Although the demand did not describe Beasley’s cotton by its marks, brands, numbers of bales, etc., as it was for all of the cotton wrongfully gotten from Dublé by Kauffman, as security for the advance made him, if Kauffman still held the cotton and wished to surrender it, it was fully sufficient to have enabled him to identify the cotton for which it was made. No doubt it would have been better that the demand should have been more full and exact in its description of this cotton, had it been possible. But considering the circumstances under which it was made, we think it was sufficient for the purpose for which it was intended. The charge of the court, as-to proof of usage of trade to become binding, which was objected to by appellant, is certainly not very full, and may not be in every particular literally accurate. But taken as a whole, we do not think it could have misled the jury, or was calculated to have induced an erroneous verdict. If the charge had been understood by the jury, as appellant contends it was, or [570] had it been given, as he insists it should, have been, the verdict on the evidence should have been the same as that found by the jury. The court, it is believed, did not err in refusing to give the instruction asked by appellant Kauffman. Those instructions are broader than the evidence justifies, and hence not the law of the case, and were calculated to mislead the jury. The evidence does not show that Dublé & Wooters were openly and avowedly engaged in the business of buying and selling cotton on their own account, or were engaged in some other business while holding themselves out to the public as cotton factors, which justified the inference that the cotton of appellee on which they were negotiating an advance from appellant, was in fact their own property. A number of other questions are presented by the assignments of error which have been ably discussed by counsel, but which we do not deem it necessary to protract this opinion for the purpose of discussing in detail. In the main their determination should be controlled by the principles of law already adverted to. A review of the whole case leads us-to the conclusion that the judgment is not only warranted but demanded by the entire evidence, and by the law as well as sound usage and customs of trade prevailing at the date of the transaction in ■ the port of Galveston. And it is therefore affirmed. Affirmed. Associate Justice G-ould did not sit in this case. [Opinion delivered March 28, 1881.]