Archer v. McMechan

• Decision Date: 31 March 1855
• Parties: ARCHER, Appellant, v. MCMECHAN et al., Respondents.
• Court: Missouri Supreme Court

21 Mo. 43

ARCHER, Appellant,

v.MCMECHAN et al., Respondents.

Supreme Court of Missouri.

March Term, 1855.

1. A factor has a lien for a general balance even upon goods consigned to him for a special purpose, if received in the usual course of business, without notice of the intended application.

2. The supreme court will look into the evidence to determine the sufficiency of a finding of the facts.

Appeal from St. Louis Circuit Court.

This was an action to recover the amount of two drafts accepted and paid by the plaintiff, Archer, at the instance and request of the defendants, McMechan & Co., for the accommodation of William J. Moore.

The cause was tried by the court without a jury It appeared in evidence that the plaintiff was a commission merchant in St. Louis, in which capacity he had done business for Moore, who resided at Brunswick. On the 13th of October, there was a balance due plaintiff on account. On that day, the defendants arranged with the plaintiff to accept and pay two drafts, one drawn by Moore and the other by themselves, the proceeds of which were appropriated to the use of Moore. The defendants agreed in writing to provide for the drafts “by shipments of tobacco or other produce, as soon as it could be shipped.” Moore was not present when this arrangement was made. On the 20th of October, Moore shipped, in his own name, 14 hhds. of tobacco to Archer. Moore testified that he shipped the tobacco, at the request of one of the defendants, to meet the drafts, but that no letter of instructions accompanied the shipment. It was found by the court that the tobacco was shipped under the agreement between defendants and Archer to meet the drafts, but it was not found whether or not the plaintiff had notice of that fact.

The plaintiff claimed to apply the proceeds of the tobacco upon the general balance due from Moore to him; but the Circuit Court held that they must be applied in payment of the drafts, and accordingly gave judgment for the plaintiff only for the excess of the drafts above the proceeds of the tobacco.

C. C. Whittelsey, for appellant. As it does not appear that Moore notified plaintiff that the tobacco was shipped upon account of the drafts, plaintiff had the right to carry the proceeds to his account with Moore and to make the application; and defendants must take the burthen of Moore's acts if they claim the benefit. As to application of payments, see 1 Hare & W. L. C. 123. Mayer v. Patten, 4 Cranch, 317. Field v. Holland, 6 Cranch, 8. Brady v. Hill, 1 Mo. Rep. 315. Hammer's Administrator v. Rochester, 2 J. J. Marsh. 144. Stamford Bank v. Benedict, 15 Conn. 438, 443, 445. As to factor's lien, see Story's Ag. § 408, 409. 5 Barn. & Ald. 27. George v. Claggett, 7 T. R. 359.

J. A. Kasson, for respondent.

LEONARD, Judge, delivered the opinion of the court.

The only litigated matter in this cause was, whether the plaintiff had a factor's lien for the general balance of his account, as Moore's factor, upon the tobacco shipped by Moore to meet the plaintiff's acceptances; and this rests, as a matter of law, exclusively upon the question, whether he received it in the ordinary course of his business as Moore's factor, or had notice of the purpose to which it was to be applied under...