38 F. 330 (W.D.Tenn. 1889), Moore v. Hill

Citation:38 F. 330
Party Name:MOORE et al. v. HILL et al.
Case Date:January 05, 1889
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 330

38 F. 330 (W.D.Tenn. 1889)

MOORE et al.

v.

HILL et al.

United States Circuit Court, W.D. Tennessee.

January 5, 1889

Page 331

Metcalf & Walker, for plaintiffs.

Hill & Wilkerson, for defendants.

Before JACKSON and HAMMOND, JJ.

JACKSON, J.

This suit is brought to recover the proceeds of a certain lot of cotton as the property of the plaintiffs, which it is claimed was wrongfully converted by defendants to their own use. There is no controversy or dispute as to the material facts of the case, which are the following: In December, 1885, the plaintiffs were the consignees and owners of 79 bales of cotton, which were shipped to them from points on the Tennessee river near Huntsville, Ala., by the steam-boat Myra, to be carried to Chattanooga, and from there reshipped by way of the Cincinnati Southern Railroad to the plaintiffs at Cincinnati, where they resided and did business. There was also upon the steam-boat on this trip another small lot of cotton (about 18 bales) in addition to that belonging to plaintiffs. Before the Myra reached Chattanooga, her port of destination, so far as plaintiffs' cotton was concerned, a fire occurred on the boat, which damaged a portion of her cotton cargo, by burning off the bagging, obliterating the marks, and scorching the cotton in such a way as to render it difficult, if not impossible, to separate or distinguish such damaged portion as between the plaintiffs and the owners or consignees of the small lot. On the arrival of the Myra at Chattanooga,

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only 45 of the 79 bales consigned to plaintiffs could be clearly identified. These 45 bales were, by warehousemen at Chattanooga, duly forwarded to and received by plaintiffs. The cotton damaged by fire and water, embracing 34 bales of plaintiffs' cotton, and 18 bales belonging to other parties, was first stored in a common mass in a warehouse at Chattanooga, and was shortly afterwards shipped by G. A. Samuels, the master of the Myra, to the defendants, Hill, Fontaine & Co., cotton factors and commission merchants at Memphis, Tenn., to whom said Samuels ordered the railroad bills of lading for said 52 damaged bales. On the arrival of the boat at Chattanooga no notice was given plaintiffs of the fact that 34 bales of their cotton were damaged, and its marks obliterated; nor were they informed of the fact that it had been stored in a warehouse at Chattanooga; nor were they asked to give instructions in reference to its disposition. They had no knowledge or information that said Samuels would or had shipped the cotton to the defendants, and never consented to his so doing. In making this shipment of said 52 damaged bales of cotton to the defendants, Samuels took the bills of lading therefor in his own name, and in forwarding to defendants the bills of lading for the same, with his blank indorsement thereon, he did not disclose to them the facts in connection with the cotton. He made the consignment to defendants not as master of the Myra, or in any agency capacity, but in his own name, as the owner of the cotton. The defendants were entirely ignorant of the plaintiffs' interest in the cotton, nor was there anything in connection with the shipment to lead them to doubt or suspect that Samuels was not the owner, as he assumed to be in making the consignment. In a letter inclosing the bills of lading, and advising the defendants of the shipment, Samuels notified them that he had drawn certain drafts on them to the amount of $1,348.51. He, however, between the 5th and 10th of December, 1885, drew drafts on defendants to the amount of $1,448.51, which were duly honored and paid by them on and between said dates. The cotton was received by defendants at Memphis on or about December 12, 1885. In order to put the cotton in condition for sale, it had to be repacked, and in the repacking it made or turned out only 48 bales, which the defendants thereafter sold for account of said Samuels, with whom defendants opened an account current on their books, in which account they charged said Samuels with the amount of his several drafts as paid, together with the balance of interest against him, amounting December 7, 1886, to $10.20, and credited him with the net proceeds arising from the sales of the cotton. The net proceeds thus realized from the cotton by the defendants, with the dates of sales and the dates of credits given Samuels therefor, as appears from a statement furnished by defendants, were the following, viz.: December 31, 1885, 3 bales cotton sold, net proceeds, $93.24, credited to Samuels January 18, 1886, December 31, 1885, 4 bales cotton sold, net proceeds, $121.22, credited to Samuels January 13, 1886; January 2, 1886, 14 bales cotton sold, net proceeds, $439.76, credited to Samuels January 14, 1886, January 4, 1886, 4 bales cotton sold, net proceeds, $115.99, credited to Samuels January 15, 1886; January 4, 1886, 3 bales cotton sold,

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net proceeds, $108.29, credited to Samuels January 16, 1886; January 13, 1886, 15 bales cotton sold, net proceeds, $429.59, credited to Samuels January 22, 1886; January 14, 1886, 1 bale cotton sold, net proceeds, $35.14, credited to Samuels January 26, 1886; January 15, 1886, 3 bales cotton sold, net proceeds, $85.24, credited to Samuels January 25, 1886; March 6, 1886, 1 bale cotton sold, net proceeds, $26.60, credited to Samuels March 6, 1886. The plaintiffs, under date of January 13, 1886, wrote the defendants as follows:

'Messrs. Hill, Fontaine & Co. Memphis, Tenn.-- DEAR SIRS: We learn that 34 bales of cotton shipped to us on the steam-boat Myra, and which were damaged by fire and water, have been sent to you, and are now in your possession. We beg that you will take notice that we hold B. L. for this 34 bales, and that the cotton was wrongfully diverted without our consent or knowledge; and that we shall hold you accountable for the same.'

This letter, as stated by one of the defendants, Mr. Fontaine, was received on the 14th of January, 1836. The defendants failed to reply thereto, and it was followed, early in February, 1886, by a formal demand upon them for the cotton or its proceeds. The defendants declined to recognize the plaintiffs' right to the cotton or its proceeds, on the ground that they had made advances to Samuels in the bona fide belief that he was the owner of the cotton, and on the credit of the bills of lading which he indorsed to them, and of the cotton which he consigned to them; that these advances to Samuels having been made by them upon the security of the cotton so placed in their hands, and before they had any notice or knowledge of plaintiffs' rights in or to the cotton, they had the right to retain it as against the plaintiffs, and apply the proceeds thereof to reimburse themselves for the advances so made said Samuels. It appears from the foregoing statement that up to January 14, 1886, when defendants received plaintiffs' letter notifying them of their claim to the cotton, only $121.22 (being proceeds of 4 bales cotton sold December 31, 1885) had been actually credited by defendants to said Samuels. The other credits were given said Samuels on and after the 14th of January, 1886. It admits of no question, under the evidence, that plaintiffs' 34 bales of damaged cotton went into the defendants' hands in the mingled lot of 52 bales shipped to them by Samuels, which, upon the repacking, made the 48 bales, which defendants sold, and applied the proceeds thereof as above stated; and the plaintiffs therefore claim of the defendants such proportion of the entire proceeds as the quantity of cotton belonging to them bore to the whole. In other words, they claim 34-52 of the whole proceeds, being $951.35, with interest.

Under the foregoing statement of facts and claims of the respective parties, the single legal question presented for consideration and decision is whether plaintiffs are entitled to recover from defendants the amount of said proceeds arising from the sale of their share or proportion of said cotton. The plaintiffs' right to recover is resisted on two distinct grounds: First, it is insisted on behalf of defendants that, inasmuch as no particular 34 bales could be selected out of the damaged lot of cotton on its arrival at Chattanooga, and be forwarded to plaintiffs as their own cotton,

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Samuels, the master of the Myra, under the maritime law had the right, and it was his duty, to sell the injured cargo; that, having the right to sell as master under the circumstances surrounding the cotton, Samuels had the right to select the defendants as cotton factors to make the sale; that he had also authority to receive or collect the proceeds, and distribute the same among the several owners of the cotton; and that, having exercised these rights, and collected the money for the cotton sold, his failure to pay the same over to the rightful owners is a mere breach of his authorized agency, and a matter with which defendants are not concerned, and in no way responsible. This position is rested upon the authority of Jordan v. Insurance Co., 1 Story, 342. The Velona, 3 Ware, 139, and Miston v. Lord, 1 Blatchf. 354, which hold that in cases of calamity or unforeseen and unprovided necessity during the voyage the law clothes the master with the authority of a supercargo, and authorizes him to make such disposition of the cargo as will be most for the interest of the owners, upon whom his acts done under such circumstances, and in the exercise of a sound discretion, are binding. But the rule laid down in those cases has no application to the present. The Myra, in respect to plaintiffs' cotton, had completed her voyage when she reached Chattanooga, and the cotton was at its place of destination so far as concerned the boat and her master. No case has been found going to the extent of holding that the master may sell his cargo...

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