Burton v. Goodspeed

Mr. Justice Scholfieud delivered the opinion of the Court: The relation existing between appellants and Holbrook, by virtue of their contract, is neither that of vendor and vendee, nor of partners. Holbrook agrees to receive coal and hoist from the vessel, and put the same on the dock, pay the lake freight, and charge the cost of hoisting and putting the coal on the dock, and the lake freight paid by him, against the coal, and to receive for docking, screening, selling and delivering the coal, including his commissions, the sum of §1.50 per ton on all coal delivered at any point outside of the yard requiring carting, and $1 per ton on all coal delivered on the yard, and an additional commission of fifty per cent of the net profits on sales, etc., and also to guaranty payment on all sales, advance on the coal as it is shipped $3 per ton of the invoice price, to be drawn for at sight on bills of lading, and pay to appellants, as the coal is sold, the balance of the proceeds of sales. He also agrees not to sell the coal below the market price ruling at the time sales are made, and to render monthly statements of accounts. There is nothing said about selling the coal or any interest in it to Holbrook; nor have we been able to find any language from which we can reasonably presume that the intention of the parties was to invest him with the ownership of the property. The fact that he was to receive a portion of the net profits on sales does not ]>rove that he was a partner, as they were given merely as a part of his compensation. We think, under the evidence, Holbrook was, as to the coals shipped to him for sale by appellants, a factor or commission merchant. Parker v. Fergus, 43 Ill. 439 ; Wynne v. Hammond, 37 id. 99; Parsons on Mercantile Law, 168; Story on Agency, sec. 33; 3 Kent’s Com. 33. It is well settled, that a factor is authorized to sell upon credit, except where the usage of trade is otherwise. Story on Agency, sec. 209; 2 Kent’s Com. 622. There is nothing in this contract which positively forbids a sale of the character that was made by Holbrook, and our attention has been called to no authority holding that such a sale is beyond the power of a factor. Where, as in this case, a written contract is made by a factor in his own name, for the purchase or sale of goods for his principal, the principal is bound, and he may sue and be sued thereon in his own name, for it is treated as the contract of the principal as well as of the agent. Story on Agency, sec. 161; Fishback v. Brown, 16 Ill. 74. Perceiving no error in the record, the judgment of the court below is affirmed. Judgment affirmed.