Benny v. Pegram

• Decision Date: 31 March 1853
• Citation: 18 Mo. 191
• Court: Missouri Supreme Court
• Parties: BENNY & HOUSE, Respondents, v. PEGRAM & WHITMORE, Appellants.

18 Mo. 191

BENNY & HOUSE, Respondents,

v.PEGRAM & WHITMORE, Appellants.

Supreme Court of Missouri.

March Term, 1853.

1. A factor cannot deliver the goods of his principal in payment of his own debts, so as to pass the title, notwithstanding the state of accounts between him and his principal, at the time, may be in his favor.

Appeal from St. Louis Court of Common Pleas.

This was an action to recover a quantity of glass, which had been consigned by the plaintiffs, who were merchants in Pittsburgh, to Love and Osborne, commission merchants in St. Louis, to be sold on account of the plaintiffs. The glass was, by Love & Osborne, delivered to the defendants, in satisfaction of their own debt. The defendants were informed by Love & Osborne that the glass did not belong to them. There was evidence tending to show that Love & Osborne were in advance to the plaintiffs when they received the glass. The court below refused to instruct the jury that the plaintiffs' right of recovery would be affected by the state of accounts between the parties.

Todd & Krum, for appellants.

If the plaintiffs were indebted to Love & Osborne when the glass was received by the defendants, the latter are entitled to be subrogated to the rights of Love & Osborne.

T. T. Gantt, for respondents, cited the following authorities: Martin v. Coles, 1 Maule & S. 140; Shipley v. Kymer, Id. 484; Graham v. Dyster, 6 M. & S. 14; Daubigny v. Duval, 5 T. R. 604; 4 B. & C. 342; Fielding v. Kymer, 2 Brod. & Bing. 639; Kuckein v. Wilson, 4 Barn. & Ald. 443; McCombie v. Davis, 7 East, 7; Kinder v. Shaw, 2 Mass. 398; 1 Mason, 440; 4 J. R. 103; 6 Serg. & Rawle, 392; 7 N. H. 446; Warner v. Martin, 11 Howard, 209.GAMBLE, Judge, delivered the opinion of the court.

1. The only difference between this case and that of the same plaintiffs against Rhodes is, that, in the present case, reliance is placed upon the fact that, at the time the factors delivered to the defendants the goods of their principals, in payment of a debt due from themselves to the defendants, the factors were in advance to the principals to an amount equal to, or greater than the value of the property so delivered. It has been stated in Rhodes' case, that, although a factor may sell enough of the goods consigned to him to reimburse himself for his advances, yet, such sale is to be a real sale, made in the usual mode, and not a delivery of the property to the creditor of the factor in payment of his debt. In the trust which a factor has to...