Victor Sewing Machine Co. v. Heller

Taylor, J. The instructions above recited were undoubtedly correct, if the powers of an agent for the sale of personal property are to be governed by the rules of the common law, wholly unaffected by the statutes of this state relating to factors and agents entrusted with the possession of property for the purpose of sale. This act has recently been under consideration in this court, and, after most learned and exhaustive arguments by counsel on both sides, this court has given a construction to a portion of that statute. The case referred to is Price v. The Wisconsin Marine & Eire Insurance Co., 43 Wis., 267. In this case the learned chief justice has reviewed the decisions made under similar statutes, both in New York and England, and has, we think, most clearly shown that this court cannot follow the decisions of the courts of New York in its construction of this statute, without substantially repealing the same by judicial construction. The conclusions arrived at by the chief justice in that case are fully concurred in by all the present members of this court. In that case the question was as to the rights acquired by the pledgee in case [271] of a pledge of a negotiable warehouse receipt by a factor, to whom it had been transferred by his principal, or whom his principal had empowered to purchase and retain it; and the conclusion arrived at was, that in such case the principal entrusts his factor with the power to pledge, as well as to sell, in favor of one dealing in good faith with the factor; that notice that the holder of such warehouse receipt holds it as a factor, is not notice of any limit of the factor’s power of disposition by sale or pledge, as between the factor and his principal ; and that a factor’s sale or pledge of such receipt in violation of his instructions will not bind his principal, if the vendee or pledgee has notice that the factor holds his title for a principal, and sells or pledges in violation of the instructions of the principal. The acts under consideration, in the case above cited, were sec. 6, ch. 340, Laws of 1860, as amended by sec. 1, ch. 73, Laws of 1863, and sec. 3, ch. 91, Laws of 1863. Sec. 6, ch. 340, Laws of 1860, as amended, provides, amongst other things, “ that warehouse receipts, for goods, etc., may be transferred by delivery, with or without indorsement thereof; and any person to whom the same may be so transferred, shall be deemed and taken to be the owner of the goods, etc., therein specified, so far as to give validity to any pledge, lien or transfer made or created iy such person or persons.” Sec. 3, ch. 91, Laws of 1863, provides, “ that every factor or other agent entrusted with the possession of any bill of lading, customhouse permit, or warehouse-keeper’s receipt, for the delivery of any such merchandise [referring to merchandise shipped as mentioned in the preceding sections of the chapter], and every such factor or agent not having the documentary evidence of title, who shall be entrusted with the possession of any merchandise for the purpose of sale, or as security for any advances to be made or obtained thereon, shall be deemed to be the true owner thereof, so far as to give validity to any contract made hy such agent with any other person for the sale [272] or disposition of the whole or cmy part of such merchandise, for any money advanced, or negotiable instrument or other obligation in writing given, by such other person upon the faith thereof!” It is insisted by the appellant, that the evidence in this case brings it within the protection of see. 3, ch. 91, Laws of 1863, above quoted, and consequently the instructions given by the circuit judge were erroneous. We do not think so. I-t will be seen, by an examination of the provisions of the acts above cited, that a factor or other person holding a negotiable warehouse receipt by transfer, either with or without indorsement, shall be deemed and taken to be the owner of the goods, etc., therein specified, “ so far as to give validity to a'ny pledge, lien or transfer made or created by such person or persons;” and that a factor or other agent who is entrusted with the possession of any merchandise for the purpose of sale, or as security for any advances to be made or obtained thereon, “ shall be deemed the true owner thereof, so far as to give validity to any contract made by such agent with any other person for the sale or disposition of the whole or any part of such merchandise, for cony money advanced, or negotiable instrument or other obligation in writing given, by such other person upon the faith thereof!” The two sections are materially different. Under the first, - any pledge, lien or transfer, made by the holder of the receipt, is made valid; whereas, under the second, the contract of the agent is made valid so far only as to protect the person dealing with such agent, afor any money advanced, or negotiable instrument or other obligation in writing given, by such other person.” The case of Price v. The Wisconsin Marine & Fire Insurance Co., cited above, was a case arising under sec. 6, ch. 340, as amended by sec. 1, ch. 13, Laws of 1863, and was the case of a pledge for money advanced, and was protected even under the provisions of sec. 3, ch. 91, Laws of 1863. The case [273] at bar must come within the provisions of sec. 3, ch. 91, Laws of 1863, to be protected at all. The provision of sec. 3, ch. 91, Laws of 1863, is in derogation of the common law, and, when construed as applicable to a person who deals with a person knowing him to be an agent for another, has always been construed, to say the least, not liberally in favor of such person. It appears to us that, under any fair construction of this section, a person who barters with an agent is not protected thereby. He cannot be said to have advanced money upon the faith of the property received. The particular words used in the statute exclude the idea that a barter with the agent can be protected. It would seem that the legislature did not intend to protect a man dealing with an agent to sell, who deals with him in a way which he is presumed to know is in violation of his contract with his principal. The evidence in the case simply shows that Lyman was the agent of the plaintiff to sell machines. No evidence was given to show the pow’ers of the agent, other than this general statement of his agency. It was not shown, or attempted to be shown, that the agent h§d power to barter away the machines, or that he had, in fact, been accustomed to barter the machines, either with or without the knowledge or assent of his principals; and no evidence wras given to show that the agent had any lien on this or any other machines, in his possession, either for commissions or for money advanced thereon. Th¿ case, as presented, was either simply a pledge by the agent to secure a debt of his own, or a conditional sale or exchange, and part payment made in goods sold to the agent, the payment for such goods to be secured by pledge of the machine in case the defendant was not satisfied with it. As the proof shows, he was not satisfied with the machine, refused to pay for the same, and notified the agent to take it away. . He held the same, at the time of the commencement of this action, as a pledge for the goods sold to the agent. This he clearly had no right to [274] do. The instructions given by the circuit court were not, therefore, erroneous. We do not think there was any error committed by the court with respect to the verdict. It is true, the record shows that the judge, after the delivery of the verdict, said to the jurors that they were discharged; but immediately thereafter, before they had left their seats or communicated with any one, the judge called their attention to the imperfections in the verdict, and, having put the same in the form in which the jurors affirmed they intended it to be, it was signed by the foreman, and, as so amended, declared by the jury to be their verdict. The judges of the circuit courts are frequently called upon to perform a work of this kind. Jurors, unacquainted with the forms of law, very often deliver very informal verdicts; and, where their intentions are clearly indicated by such informal verdict, it becomes the duty of the court to put it in proper form before it is entered as the verdict of the jury. It is in furtherance of justice that the judge should do so. When it. is clear that the verdict, as finally put in form by the court, is the one intended by the informal one delivered by the jury at first, no injustice is done to the parties, if, after the same is so put in formal shape, the jury, without further consultation, and without again retiring to consult, assent to the entry thereof. ■ By the Oov/rb. — The judgment of the circuit court is affirmed. ByaN, C. J., and LyoN, J., took no part.