A. C. Wyly & Co. v. Burnett

Warner, Judge. This was an action brought by the plaintiffs against the defendants, as commission merchants, to recover the value of several hundred pounds of Scotch Maccaboy snuff, consigned to the defendants for sale during the years 1863 and 1864, and which was sold by them for Confederate money. It appears from the evidence in the record, that the defendants did not keep the money received by them for the snuff, separate and apart from their own money, but used it themselves, though they always had and kept on hand enough to pay all outstanding demands against the firm, and when the war closed they had Confederate money more than enough to pay the plaintiffs demand, which died on their hands; that the plaintiffs never demanded the money of them until after the war. [441] The Court charged the jury, that “if defendants sold part of the snuff for Confederate treasury notes and used them for their own purposes, or mixed them with their own, or with notes of like character that were received from sales of the property of other consignors, and used the notes thus mixed for their own purposes, they then became liable to pay to the plaintiffs the value of the notes thus used, at the time they were used.” The jury found a verdict for the plaintiffs, for the sum of $211 68. The defendants made a motion for a new trial, on the ground that the Court erred in its charge to the jury, and on other grounds, which were overruled by the Court, and the defendants excepted. The only ground of error insisted on in the argument here, was the alleged error in the charge of the Court before recited. In view of the evidence disclosed by the record, there was no error in the charge of the Court to the jury as to the liability of the defendants for the value of the Confederate money for which they sold the plaintiffs snuff and used for their own purposes. If the defendants had deposited the Confederate money for which they sold the snuff, in bank to the plaintiffs’ credit, or had kept it separately from their own money for them, and had given the plaintiffs reasonable notice thereof, then, if the plaintiffs had failed to call for it, and the money became worthless, it would have been the plaintiffs’ loss; but as the defendants used the money as their own, without giving the plaintiffs any notice that they had the money arising from the sale of their snuff, they were liable for its value at the time it was so used by them. Let the judgment of the Court below be affirmed.