Rose v. Weinberger & Co.

Little, J. The defendants in error instituted an action against Eose & McDonald to recover the value of a car-load of fruit purchased by the latter under a certain contract which is fully set out in the report of the case when it was here before. 108 Ga. 533. The judgment -under that writ having been reversed, the case was again tried, resulting in the direction of a verdict for the plaintiffs; to which direction the defendants excepted. They also assign as error the exclusion of certain evidence offered to sustain their pleas. The main issue to be determined as fixing the rights of the parties was, whether plaintiffs were the owners of the fruit, or whether it [631] belonged to Pinkham & McKevitt at the time of the purchase hy Rose & McDonald. It .was stipulated in the contract of sale to Rose & McDonald that the fruit was to he shipped to them “F. O. B. California, buyer’s risk, California weights.” The term “ buyer’s risk” in this contract, as interpreted hy this court in its prior decision, did not impose on the purchasers the assumption of the risk of any damage which resulted from improper packing or shipping in a defective car, if the seller was himself the owner and shipper. It was also ruled that if Weinberger & Co. were the owners of the fruit at the time they sold it to the plaintiffs in error, the latter under their contract would have no defense to the action, hut that if Pinkham & McKevitt were the owners, then the purchasers would he let into the defense that the fruit, at the time they received 'it, had greatly depreciated in value, because- of improper packing in a defective car. In the trial now under review the trial judge ruled that certain evidence offered hy the defendants did not tend to show that Pinkham & McKevitt were the owners at the time of the purchase, and therefore excluded it. The evidence offered was, in part, substantially that Weinberger & Co. were fruit and produce brokers, commission merchants and dealers in fruit, in New Orleans; that the car of fruit was shipped to them by Pinkham & McKevitt, of Yacaville, California; that, under the. terms of the shipment, Weinberger & Co. were to sell the fruit to the best advantage and to assume all risk and responsibility as to credits, and were to remit proceeds immediately with accounts of sale on a commission basis; and that the fruit was to he sold by Weinberger & Co. for the account of Pinkham & McKevitt. No instructions were given as to the price at which -the • fruit should he sold, hut Pinkham & Mc-Kevitt were to receive the net proceeds of the sale. We are of the opinion that the trial judge erred in excluding from the jury the evidence which was offered. If true, it was sufficient to authorize a finding that the defendants in error were not the owners of the fruit at the time of the purchase, hut that the original shippers, Pinkham & McKevitt, were the owners as a matter of law. We have not attempted to set out in detail all the evidence which was rejected, hut taken as a whole it would seem to establish the status of Weinberger & Co. to be that of agent with a del credere commission in relation to the sale of the fruit. It altogether fails to show the elements necessary to constitute a sale [632] by Pinkham & McKevitt to Weinberger & Co. We have been referred by counsel for the defendants in error to the case of Snelling v. Arbuckle, 104 Ga. 362, as an authority under which the rejected evidence should have been excluded; but there are several material differences between the contract offered to be proved by the excluded evidence and that shown in the Arbuchle case. Under the former the defendants in, error were never to remit to Pinkham & McKevitt for the car-load of fruit until a sale had been made; under the latter the consignee agreed that at the expiration of sixty days from date of consignment he would remit to Arbuclde full payment for the entire consignment, regardless of the fact whether the goods of which such consignment consisted had been sold by him or not. Certainly when the consignee had paid the full value of the goods they were his without regard to the form of the contract which existed between them, notwithstanding it was called a consignment. It is not an uncommon thing for a commission merchant who may, unless it be otherwise stipulated, sell on reasonable and proper credit, to guarantee to the consignor payment for the articles consigned, when sold, or to guarantee all credits; if he does so, neither fact changes his relation, and the consignor has a right to look to the merchant for payment, notwithstanding the latter has not been paid, but the right to do so does not exist until the goods are sold. Such guaranty does not make the merchant .a purchaser, but he remains the agent of the consignor to sell. The obligation to pay for the goods arises under the contract of’guaranty only when the goods are sold; and while the consignor, being the owner, could, notwithstanding the guaranty, look to the purchaser for payment in the event he does not pay the agent according to his contract, he is not bound to do so, as under a contract of this character the agent is hable whether in fact he collects the purchase-price or not. See Holleman v. Bradley Fertilizer Co., 106 Ga. 156; Mechem on Agency, § 14. The court erred in excluding the evidence sought to be introduced. • Judgment reversed. All the Justices concurring.