Gordon & Gomilla v. Wright & Clark

The opinion of the court was-delivered by • Spencer, J. Plaintiffs, a commercial firm of New Orleans, bring this -suit by attachment against defendants, a commercial firm of Jefferson, Texas, for $1629 41, with ñve per cent .interest from first March, 1872. They allege that in the latter part of 1871, and early in January, 1872, they consigned to the defendants for sale 500 barrels of flour, which defendants duly received. That defendants refuse and- neglect to account for a portion of said flour, by reason of its having, while in their warehouse at Jefferson, been destroyed by fire in the month of February, 1872. That said defendants were instructed to insure said flour. That it was in the usuál course of business, their duty to insure it — that they had insured similar shipments made to them by petitioners or at least had charged petitioners with the premiums of insurance, which in every instance were duly paid by petitioners — and that said defendants had charged petitioners with the premiums of insurance on this particular lot of flour — that said defendants are liable for ■ 167 barrels of flour worth $1472 and for damages done to other barrels to the amount of $354 75, less a credit of $197 34, leaving due $1629 41. They pray for attachment and garnishment. The defendants answer in substance, that they were not the agents of plaintiffs; that if- they were they were not bound to insure; that in point of fact they did insure and that they are not liable for said loss. There was judgment for plaintiffs as prayed for, and defendants appeal. The evidence satisfies us that plaintiffs shipped the flour to defendants for sale, and that defendants received it, and stored it in their warehouse. That defendants were in the habit of insuring the plaintiffs’ consignments, charging insurance premiums therefor, which were always paid by plaintiffs. That in point of fact they (the defendants) had this particular flour entered as insured under their open policy with “ the Texas Banking and Insurance Company ” and charged plaintiffs with the premiums thereon. This policy was payable only to the defendants or their assignees. The insurance attempted was effected in their name, and not in that of plaintiffs, who could not have maintained an action on the policy. The insurance officers swear that defendants overloaded their policy, which was for only ten thousand dollars, and that the company had paid them all it owed under the policy. Under this state of facts the right' of plaintiffs to recover is too plain for discussion. If the defendants did insure, it was in their own name, and it was their duty to collect. If they did not, it was their neglect of a plain duty which makes themselves liable as insurers. They can not avoid1 this liability by pretending that plaintiffs had more especially charged one of their (defendants’) clerks with the sale of this flour. There [814] is no sufficient proof of that fact, and there is no pretense that defendants were not the consignees.- It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed with costs of both courts. Marr, J., recused.