Nonantum Worsted Co. v. C. J. Webb & Co.

Opinion, Mr. Chief Justice Paxson: This was a writ of foreign attachment against the Nonantum Worsted Company as defendants, and Thomas Dolan et al., garnishees. The defendants appeared; the plaintiffs filed a claim in assumpsit, to which the defendant company pleaded non-assumpsit and set-off. Upon this issue the case went to trial below with the result of a verdict in favor of the plaintiffs for $2,024.34. The material facts necessary to a proper understanding of the [132] case, may be briefly stated as follows: The defendant company is a corporation doing business in the city of Boston. Prior to June, 1887, they had divers business transactions with one Frank J. Primrose, doing business in Philadelphia, and were indebted to him (said Primrose) in a sum estimated from one to two thousand dollars in round numbers. On June 22, 1887,' without any pretence of authority, Primrose sent to the company at Boston a large lot of Texas wool, some ninety-two thousand pounds, then in transit, consigned to him by some third person, but which neither he nor the said company had ever seen, and at the same time, and with a like absence of authority, drew upon the company a draft of $19,134.69. The company refused to accept the wool or to protect the draft, and a correspondence by wire and letter immediately took place. It is not necessary to refer to this correspondence in detail. It is sufficient to say that as a matter of pure friendship and accommodation to Primrose, the company, not having yet seen or received the wool, offered to take it upon consignment and protect the draft, upon Primrose putting up $5,000 cash as a margin. This he was unable to do, and finally the company accepted and paid the draft upon his giving them $2,000 as a margin. When the wool arrived at Boston it was found not only not up to sample, but an exceedingly bad lot. It was so full of grease, sand, and dirt,- that several bags of it on being cleaned lost in weight from 72 to 78 per cent. This fact was proved and not contradicted. Upon ascertaining this the company demanded more margin which was not furnished, and from that time to the trial of the case below appeared to have constantly demanded an increased margin, or that Primrose should repay the advances and take the wool away. He did neither, but on July 9, 1887, assigned his claim for certain other wools, or the proceeds thereof in the hands of the company, to Charles J. Webb & Co., alleged creditors of his. Webb & Co. commenced this suit of foreign attachment, claiming there was a balance due Primrose from the worsted company of about $5,000. The suit was brought by Webb & Co. in their own name. Subsequently the record was amended by adding the words “ assignees of Frank J. Primrose.” They appear to have proceeded upon the theory that as assignees of Primrose they were entitled to recover the amount of the pro [133] ceeds or value of the wool in the hands of the company, without regard to the state of accounts between the latter and Primrose. In other words, that even if the accounts between Primrose and the company showed the former indebted to the latter, Webb & Co. could nevertheless recover against the company for a particular claim in the account. It might be very convenient for an insolvent debtor to separate his assets from his liabilities, and assign the one and ignore the other, but I apprehend there would be found serious difficulties in carrying out such a scheme. All that Primrose could lawfully assign was the balance, if any; in the hands of the company, after their accounts were adjusted. It is evident that this suit cannot be sustained in the name of Webb & Co. At this stage, however, we are disposed to treat the record as amended, and regard it as a suit brought by Primrose to the use of Webb & Co. This places Primrose on the record as the legal plaintiff for all practical purposes, and hereafter when I refer to the plaintiff, I mean Primrose. With this in view, I will refer briefly to the trial below. • The amount admitted by the defendants to be due the plaintiff on the particular sales of wool embraced in the assignment to Webb was $1,091.43; the amount claimed by the plaintiff was §2,024.34. The defendants contended, however, that all this and much more was swallowed up by their advances to plaintiff on the lot of wool sent to them by him on June 22d; that the advances, freight, insurance, etc., had not been repaid; that they had never sold the wool, although they had repeatedly attempted to do so, and that it was still in their warerooms in Boston, subject to the plaintiff’s order, and that it could not be sold for a sum sufficient to cover their advances. The plaintiff contended that the defendant company had converted the wool to its own use. The evidence, and the only evidence offered in support of this allegation was a statement of account sent by the company to Charles J. Webb & Co., on January 15, 1888. It is headed “ Frank J. Primrose in account with Nonantum Worsted Company.” On the credit side of the account appears the item under date of June 22d, “ By 393 bags, *12,997.18.” This I understand to be 92,000 pounds of wool at fourteen cents, less freight and charges paid. Because the plaintiff was thus credited the inference is drawn, [134] and I have no doubt was used effectively before the jury, that the defendants had converted the wool to their own use, while the evidence is uncontradicted, that it had not been either sold or converted, but was in the defendant’s hands as consignees of the plaintiff at the time of the trial. The fact seems to have been overlooked that for six months prior to the sending of this account, the defendant company had been demanding and begging both the plaintiff and Webb & Co. to put up a sufficient margin or repay the advances and take the wool away. The sum of 112,997.18 is merely the valuation which the defendants put upon the wool, or are willing to take or estimate it at. How could the defendant company show that they had over-advanced upon it, except by sending an account on which a consignee’s valuation had been placed upon the wool ? Following up his theory of a conversion, the plaintiff attempted to show that the wool was worth much more than fourteen cents, and succeeded with the jury as the verdict shows. I do not know exactly what price they did place upon it, but as I understand the figures it must have exceeded sixteen cents to enable them to find a verdict for the plaintiff for any sum. This is immaterial, however. The verdict in view of the evidence was extraordinary. The plaintiff himself testified that he never in his life saw a lot of wool that had as much sand and dirt in it; that it was an outrageous swindle upon him, and through him, though innocently, an equal swindle upon the defendants; that it was not worth more than from fourteen to sixteen cents per pound, probably not over fourteen, in June, 1887, and that it has been constantly depreciating since that time. He nowhere asserts in his testimony that the defendants converted the wool, or even hints at such a thing. It is true there was testimony that a Mr. Rawitzer went to Boston in company with Mr. Webb, on August 2, 1887, and offered defendants sixteen cents a pound for the wool. But this was evidently for the purpose of manufacturing testimony. The plaintiff himself discredits his own witness, and said upon the stand that Webb (use plaintiff) had told him that he (Webb) shook in his shoes, or some equivalent expression, for fear the offer of sixteen cents which either he or Mr. Rawitzer made to the defendants would be accepted. Upon a careful examination of the case we are of opinion [135] there was no evidence of a conversion to submit to the jury. In this view the question of the value of the wool becomes immaterial. I am inclined to think that some of the confusion in the case upon the trial below was caused by overlooking the distinction between legal and use plaintiffs. Both of the assignments of error are sustained. Judgment reversed.