Tucker v. Mehle Live Stock Commission Co.

[312] J.H.Tucker,Appellant. vs Mehle Live Stock Commission Co. »o*8900 Charlee F,Claiborne,Judge, This is a suit on a draft drawn against a consignment' of cattle. The plaintiff Tucker alleged that he sold to J.D. Seeley certain cattle for the price of #698.10 ; that the said Heeley gave him In payment of said cattle a draft drain* by himself on the Mehle Live Stock commission Company for a like amount of #690.10 payable to the order of petitioner,Tucker } .that the said Seeley shipped Bald cattle to the Mehle Live Stock Commission Company for sale} with Instructions to pay th-aboye mentioned 4»vwF* draft of #696.10 out of the proceeds of the Bale of said cattlejthat the Mehle Live Stock Commission Company sold sala cattle ror account of Heeley;bot,in disregard' of his instructions to them,credited the proceeds of sale to a debt due to them by Heeley,and refused to pay the draft} that the Mehle Live Stock commission Company knew before It sold said eattie that the draft of $696.10 had been executed in payment of the cattle purchased by Heeley from petitioner Tucker,and that It would be presented to them for payment. The plaintiff prays for judgment against, the depen-dan • lor tls amount af the draft. The defendant file _ plea of no cause of action, whioh was sustained and the plaintiff has appealed. A commission merchant or factor is an agent te sell a k! must execute his mandate as a whole as he is instructed 4 t 1licit p.W* S 2908 Story Agency S. 189-190-1SP . He eau&vl acre, it a part and .reject another.Such has long since, been th - Juris q ««dance of this State* [313] Our leamsd brother of the City Court has evidently overlooked the allegation in the petition that Neeley shipped the cattle to the defendants with Instructions to pay the draft sued on out of the proceeds of sale of the cattle,and that the defendants had notico of said draft. In Farmers * Bank vs Franklin 1 A 393,(1846) the Supreme Court said s "Vihere merchandise is shipped to a factor,with directions to sell it,and apply the proceeds to the payment of a hill drawn by the owner in favor of the shipper,the factor who receives the consignment is bound to comply with the conditions upon which it was delivered to him.He cannot apply the proceeds to the payment of any debt due to himself by the owner.* In 2 A 572 s" Consignees,who accept a sonslgnment, are bound to obey the directions of the consignor,made at a time when the property was under his control,as to the appropriation of the» proceeds.* In 10 A 783i * We consider it well settled,under our Jurisprudence,that a factor in accepting a consignment Is bound to comply with the conditions imposed upon him by his principal In relation to the appropriation of the proceeds." Zn 13 A 661 I * There are two classes of eases in which-cerditors of a consignor cannot attach merchandise oto its proceeds In the hands of the consignee.In the first the consignments are made with express instructions to pay the proceeds to a third party,and the stipulation in favor of the Bra party is CC0Í4*2. aceepted by him xxx In the first oates of oases,the obligation to pay is a part of the original oontraot,and gires to the third party a right of action against the consignee for the proceeds of cale.* 0.0.1890^1884 ) In 14 A 494 t* If the consignor inserts in the bill of lading forwarded to his factor that he has drawn a Mil aginet the shipment,the factor receives the consignment with [314] notice,and is obliged to pay tha Mil to tha transferee thereof), eren if the consignor la indebted to the factor for a larger amount than tha proceeds of the goods consigned.* In SO A 9 46 rífhera oan be no doubt of the correct** ness of the general proposition that a consignee who acoopts a oonaigaBient with the advise and notice that the consignor had drawn on him for a stated amount against the goods consigned impliedly promises to aooept and pay the draft,and on refusal may be sued'as for breach of-contract.* See Also 18 M,702-4 N.S.557-18 La 321-4 R 440-3 A 47-85-7 A 335 10 A 377-351-11 A 333-410 —18 A 282-512-25. C.J. p.412 S 144-14 S.E.387-29 S.E. 2. Xt As therefore ordered -that the judgaeat'Of the District Court maintaining «he exceptions of.no cause or right of action be reversed ana set aolde**ad that «lile ease be rim ded to the District Court for trial on the merits and in aocor danés with the views herein expressed)costs of ,appeal to be pad paid by the defendant and appellee,and oosta of- tha1 Dtstrlefc Court to await the final decision of the ease, Judgment reversed and remanded* April 16th 1986 .