Sawyer & Boullet v. P. & G. Lorillard

PECK, C. J. 1. As <a general rule, in the absence of any contract to the contrary, a factor, to whom goods are consigned for sale, is entitled to commissions as such only on the amount of the goods sold. — Story on Agency, § 329. 2. What these commissions are, is commonly regulated by the usage of trade, at the particular place where the business is transacted, and is usually the allowance of a certain per centage upon the value of the goods sold. Where there is no usage of trade at the place, a reasonable compensation is allowed; but in all cases, this will be governed and controlled by the agreement of the parties, where such an agreement exists. — Same book, § 326. 3. A factor has a lien upon the goods in his possession, and upon the price of such as may have been sold, not — 340 — only for his commissions, but also for advances and for disbursements made to preserve the property, and for all necessary charges and expenses that are certain and not sounding in damages merely. — Story on Agency, §§ 356, 364, 376 ; 2 Kent’s Com., 3d ed. p. 640, Lecture 41. This lien, except in a few limited cases, confers on the factor no authority to sell the goods to satisfy his lien, but is confined to a right to retain the possession until his claims are paid by the owner, and is a defense to any action brought against him to recover the property — for example, if he has made advances upon the property, he may sell to repay himself for such advances, if the owner, after due notice of his intention to sell for such advances, fails to pay them. — Story on Agency, § 371; Parker v. Brancker, 22 Pickering, 40. 4. This lien may be lost by the voluntary parting with the possession. — Story on Agency, § 367 ; Jones on Bailments, appendix 52; Sweet et al., Assignees of Gard, a Bankrupt, v. Pym, 1 East, 18. Or, it may be waived by any act or agreement between the parties by which it is surrendered, or it becomes inapplicable. As if, while the property is in the hands of a factor, with a lien attached to it, he agrees to hold it for, or as the property of a third person, this amounts to a waiver of the lien. — Story, § 366. 5. Applying these principles to the case in hand, the first question that naturally presents itself is, what is the legal effect of the receipt of the appellants, defendants below, dated the 18th day of October, 1867. This receipt is in the words and figures following, to-wit: “Mobile, Oct. 18th, 1867. Received from L. 0. Norvill & Co., on consignment and for sale, 594 boxes of tobacco, sundry brands, twenty-three cases of tobacco, sundry brands, shipped by P. & G. Lorillard, of New York, for account of J. T. Henderson and L. C. Norvill & Co., now stored in bonded warehouse No. 2, in the city of Mobile, 1st District of Alabama, which will be delivered on return of this receipt endorsed by them, and payment of charges and commissions incurred thereon. (Signed) Sawyer & Boullet.” — 341 — How this receipt came to be given is disclosed, in the defendants bill of exceptions, and may be stated as follows : The said Henderson, of Georgia, and Norvill & Go., of New Orleans, in the summer preceding the date of said receipt, purchased said tobacco of said P. & G. Lorillard, of New York, plaintiffs below, on time, and would not be able to pay the note given for it at maturity, which, at the date of said receipt, would soon be due and payable, and they wished to negotiate with plaintiffs for the re-transfer of said tobacco. These facts were not known to defendants until the giving of said receipt, when they were explained to them, and said receipt was given to enable said Henderson and said Norvill & Go. to accomplish them object, and to help on their wishes in the matter; they desired to show to the plaintiffs the burthens and charges on the tobacco in the defendants hands; therefore, defendants gave said receipt, and at the same time a statement of the charges against said tobacco, which is made an exhibit to, and a part of said bill of exceptions, marked exhibit B. The gross amount of said charges, by said exhibit, appears to be $2,741 06, but credited with $1,431 50, leaving the balance $1,309 56 unpaid. To understand the legal effect of this receipt, it must be interpreted in connection with said exhibit B, as a part of it, showing the burthens and charges on said tobacco at the time said receipt was given, with the proof disclosing the reasons for giving it and the objects and purposes for which it was given, and the use intended to be made of it. So interpreted, it amounts to an agreement on the part of defendants to deliver the tobacco to the plaintiffs, if it should be re-transferred to them on their returning said receipt, duly endorsed, and paying the charges due on the same, as specified in said exhibit B; and it also operates as a waiver of any lien the defendants may then have had on the tobacco for other commissions or charges not specified in said exhibit B. To permit the defendants to withhold the tobacco from the plaintiffs, upon the alleged ground that they have a lien upon it for other commissions — 342 — or charges not specified in said exhibit B, will be a manifest fraud upon them. The plaintiffs might well trust to said receipt, and as the evidence shows, did trust to it and acted upon it. On the faith of said receipt the tobacco was re-transferred to them. The said receipt was endorsed, and with said exhibit B, specifying the charges on the tobacco, delivered to them, and of this the defendants were immediately advised by telegraph. Thereupon the plaintiffs sent their agent to ■ Mobile, to take possession of said tobacco, who paid to, and the defendants received from him, the money for the charges specified in said exhibit and receipted for the same — defendants thereby were legally bound to deliver the tobacco to plaintiffs’ agent, and their refusal to deliver it on his request was a breach of their promise made in said receipt to do so, and the plaintiffs at once might have instituted an action for its recovery. The defendants, although they received the money for the charges, &o., specified in said exhibit B, without objection; refused to deliver said tobacco to said agent, unless he would pay another account for $1,203 37, purporting to be. an individual account of C. L. Norvill & Co. with said defendants, a copy of which is made a part of said bill of exceptions, and marked exhibit D. This the said agent at first refused to pay, but at length did pay, on the agreement of the defendants to. deliver to him the whole of said tobacco. And on the payment of said account, the defendants did deliver to said agent the tobacco then in the said warehouse, but a part of it, consisting of certain sample boxes, &c., (the subject of this suit,) being in defendants’ office, they agreed to hold them subject to the order of said agent. A few days afterwards, said agent sent for said sample boxes, when defendants refused to deliver them, but addressed to said agent the note or letter, dated Nov. 25th, 1867. No intimation is given in this letter that the agreement to deliver the tobacco, and the whole of it, on the payment — 343 — of the said sum of $1,203 37 was not fairly made, or that it was obtained by any false representations of said agent, or of any one else, or that said sample boxes were withheld because they were entitled to be paid any thing for their labor or trouble in preparing the tobacco for sale, or for any other reason than the one stated, to-wit: that by some agreement, made when they first received it for sale, they were to be paid certain commissions, without stating what the agreement was, or the commissions thereby stipulated to be paid. If any doubt can exist as to the waiver of any lien on the tobacco for any burthens.or charges beyond what was embraced in said exhibit B, it is removed by the agreement to deliver it on the payment of said sum of $1,203 37. That agreement is too plain and explicit to be misunderstood. Besides, no such lien is named in said letter. The only claim there mentioned is based upon, some arrangement or agreement, not with the plaintiffs, but with the parties from whom they received the tobacco. Whatever that may have been, it can not be set up as a defense to this action. It imposes no obligation on the plaintiffs, nor can it create any lien on the property, to their prejudice. If any such lien existed in favor of the defendants while the said Henderson and Norvill & Co. continued to be the owners, it was destroyed by the re-transfer of it to the plaintiffs, by virtue of said receipt of the 18th of October, 1867, and the subsequent agreement of defendant to deliver it to their agent on the payment of said sum of $1,203 37 above referred to. Any claim the defendants may have, by the alleged agreement in said letter for commissions, or on any other account, can not justify or excuse the violation of their agreement to deliver the tobacco to the plaintiffs’ agent; at most, it is a mere individual claim against the parties with whom the said agreement may have been made, which can only be enforced by an action personally against them. So, too, if the defendants, by virtue of any understanding or agreement with the parties from whom they received the tobacco, are entitled to any compensation on its withdrawal before sale, it is a personal claim in their favor, not against — 344 — the plaintiffs, but against those parties. Such a claim to compensation is, in no proper sense, a lien on the property withdrawn. The very basis of a factor’s lien depends upon his possession of the property on which the hen is claimed, and when the possession is parted with, or an agreement is made to deliver the property to, or to hold it for a third person, the lien is lost or waived. — Story on Agency, § 366. But there is no evidence in this case to sustain the alleged claim of defendants, set up, or referred to, in said letter. On the contrary, the bill of exceptions states that “ there was no specific agreement between the consignors and consignees, as to the services of the said defendants, except that it was agreed that defendants were to pay all costs and expenses, and to charge and receive 5 per cent, for selling, and 2¿- per cent, on their advances. There did not appear to have been any understanding or agreement as to what should be defendants’ compensation in case the goods were withdrawn before sale, and no provision for. such a case other than may be inferred from said receipt above copied.” (The said receipt of the 18th of October, 1867.) "Whatever compensation the defendants might be entitled to, if any, on the tobacco withdrawn before sale, under the circumstances, depended upon the usage of trade on this subject in the city of Mobile. There was no error, therefore, in permitting witnesses to be examined by the plaintiffs, as stated in the bill of exceptions, against the defendants’ objection, “to show the custom "of merchants in Mobile not to charge commissions on goods not sold, as above specified.” The ground of defendants’ said objection is, “that it was contrary to the written agreement between the parties, as appeared from said receipt,” that is, the said receipt of the 18th of October, 1867. This objection is clearly without force, as said receipt says nothing on this subject. Taking the charge of the court as a whole, or by its several paragraphs, I am unable to discover any error available to the defendants in it. Some of its parts or paragraphs may not seem to be — 345 — altogether pertinent or necessary, nor, perhaps, expressed in the clearest language, but the law is correctly stated in all of them, and I do not see that the jury could be thereby misled to the prejudice of the defendants. The only real defense to this action depends upon the fact, whether the defendants had a lien on the property, at the time the suit was brought. Whatever lien they may have had, if not discharged by the payment of the burthens and charges specified in the statement of them, delivered to the consignors, at the time the said receipt of the 18th of October, 1867, was given, was undoubtedly waived by them subsequent agreement to deliver the property to the plaintiffs’ agent, on the payment of the said sum of $1,203 37. That was their agreement, and having received th<3 consideration, and retained the same, they have no justification or excuse for refusing to discharge the duty thereby imposed upon them. It seems to me, on the case stated in the bill of exceptions, the court, without error, might have instructed the jury, if they believed the evidence, their verdict should be for the plaintiffs. After said charge was given, the defendants requested the court to give to the jury the following charge in writing, to-wit: “ If the defendants have proved any specific services, necessary and proper, in and about the shipment, and pertaining to the goods, and a part of their duties as factors, they are entitled to payment, and have a hen on the goods for such services.” This charge the court gave “in the terms in which it is written,” but said it was given “with the qualifications contained in the first charge,” to which qualifications defendants excepted. If services such as referred to in this charge were rendered, they were rendered by the defendants before their said agreement to deliver the property on the payment of said sum of $1,203 37, and if they then created a lien on the property, it was, with all other liens, waived by said agreement. Eor this reason, if for no other, said charge might, and I think should, have been refused, and if the charge itself might have been refused, — 346 — without error, it follows that the qualification, if an error at all, is an error without injury. The judgment is affirmed at the appellants’ cost.