Green v. Campbell

argued that, under the circumstances disclosed by this case, the principal was bound by his factors’ act as well by the common as the statute law. a. E. E. Morgan’s Sons were general agents. (1 Parsons on Contracts, 95; Story on Agency, secs. 110, 131; 2 Kent, *621; Dunlap’s Payley’s Agency, 241; Wright v. Solomon, 19 Cal. *76.) 5. Factors for shipment have authority to bind the principal to payment of the freight. (Story on Agency, sec. 110; Molloy, De Jure, Bk. III, ch. viii, sec. 9.) c. Factors, for many if not for most purposes, are treated as the owners of the goods. (Story on Agency, sec. 111; Molloy, ubi. sup. sec. 2.) II. a. “ The lawful possession of goods being once acquired for the purpose of carriage, the carrier is not obliged to restore them to the owner again, even if the carriage be dispensed with, unless upon his being paid his due remuneration, for by the delivery he has already incurred certain risks.” The carrier has a lien thereon. (Story on Bailments, sec. 585; Angell on Carriers, sec. 368; Abbot on Shipping, *595; Tindal v. Taylor, 4 El. & B. 219; Bark Edwin, 1 Sprague, 481; Bark Edwin v. Naumkeag Cot. Co. 1 Cliff. 322.) MeKune & Welty, for Eespondent. I. The plaintiff was a stranger to the charter party, and his property cannot be taken, held, or pledged to satisfy appellant’s claims against E. E. Morgan’s Sons. ( Wright v. Solomon, 19 Cal. 76.) II. Plaintiff did not put his wheat on board the Charles Murdoch. E. E. Morgan’s Sons wrongfully and unlawfully di [589] verted it from the Pride of the Port, of which plaintiff held a charter; and appellant had and has no claim against respondent for anything. III. E. E. Morgan’s Sons wrongfully put the wheat in question on board the Charles Murdoch ; and a wrongdoer cannot create a lien for freight. (Robinson v. Baker, 5 Cush. 137; Stevens v. B. & W. R. R. Co. 8 Gray, 262; Ames v. Palmer, 42 Me. 197; Buskirk v. Purin, 2 Hall, 561; Saltus v. Everett, 20 Wend. 267 ; Pitch v. Newberry, 1 Doug. Mich. 1.) IY. In cases like this, the rule nemo plus juris in alium transferre potest quam ipse habet prevails over the rule that of two parties he who trusts must pay. Plaintiff did not trust appellant, and did not trust E. E. Morgan’s Sons to ship the wheat generally, but directed it to be sent in plaintiff’s own ship. Appellant secured the possession without cost on his part. Despondent paid for the loading and unloading. Y. The factor could not pawn the goods to pay his debt or liability. Can his creditor in invitum, upon the mere fact that he has got possession under circumstances which would create a lien if the goods belonged to the factor, accomplish what could not be done with the consent of the factor? By the Coübt : The amended answer of Campbell, to which a demurrer was sustained, set up that the wheat “ was shipped by E. E. Morgan’s Sons, merchants and factors, as aforesaid, in their own name, and in the usual course of trade, without knowledge or notice on the part of this defendant of the alleged ownership thereof by said plaintiff, or the ownership thereof by any person or persons other than said E. E. Morgan’s Sons.” The demurrer should have been overruled; for under the provisions of the Civil Code, (sec. 2369) Morgan’s Sons, factors of the plaintiff, had ostensible authority to deal with the property as their own, “in transactions with persons not having notice of the actual ownership.” In this respect the case differs from that of Green v. Meyer, just decided. [590] Judgment reversed, and cause remanded for a new trial. Subsequently, upon a petition for rehearing having been filed, the following opinion was rendered: