Bradlee & Co. v. Whitney

• Court: Pennsylvania Supreme Court
• Writing for the Court: Mr. Justice CLARK
• Citation: Bradlee & Co. v. Whitney, 108 Pa. 362 (Pa. 1885)
• Decision Date: 23 February 1885
• Parties: Bradlee & Co. v. Whitney & Kemmerer.

108 Pa. 362

Bradlee & Co. v. Whitney & Kemmerer.

Supreme Court of Pennsylvania.

February 23, 1885

January 19, 1885

1. A writ of error to the Supreme Court, on exceptions filed to the report of a referee to whom a cause has been referred without a jury, under the Act of May 14th, 1874, brings up only questions of law. The court cannot go behind the findings of fact by the referee, except where the assignment of error is such as could have been heard and determined if the trial had been before a jury. The court will not, in the absence of fraud, consider the weight and conflict of the evidence or the veracity of the witnesses.

2. While it is true, as a general rule, that where there is no knowledge or notice that the property involved belongs to another, the rights of a purchaser will be protected when he deals with an agent who upon his own assertion is believed to be a principal; yet where the transaction exhibits upon its face what would put an ordinarily prudent person upon inquiry, he will, as against the innocent owner, be affected with notice of that which through proper inquiry he would have ascertained.

3. The circumstances of this case held to have been such as to put the purchasers upon inquiry as to who was the owner of certain coal purchased by them, and their payment of the price to the broker who negotiated the sale, held to have been no defence to an action for the same by the real owners and sellers of the coal.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, GREEN and CLARK, JJ.

STERRETT J., absent.

ERROR to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term, 1884, No. 333.

Amicable action, submitted to a referee without the intervention of a jury, under the Act of May 14th, 1874, in which W. B. Whitney and M. S. Kemmerer, trading as Whitney & Kemmerer, were plaintiffs, and Thomas F. Dixon and William Gerhard, trading as Bradlee & Co., were defendants, to recover the price of a cargo of coal.

The referee (S. Davis Page, Esq.), found the following facts: The plaintiffs were coal dealers doing business in Philadelphia and supplying their trade with coal shipped from the mines to Trenton, New Jersey, and from thence directly to purchasers. The defendants were manufacturers at Gunners' Run. A. J. Cohen was a coal broker having an office at 322 Walnut street, Philadelphia, and was known to the plaintiffs as without means, while Mr. Gerhard, the active member of the defendant firm, knew that he had lately failed in other business. In the latter part of October, 1879, Cohen told the defendants that he had lately started an office for the sale of coal, and showed them a postal card containing his office address, and printed so as to be used for orders for all kinds of coal. Thereupon they gave him an order for a boat load at $3.40 a ton. He represented to the plaintiffs that he usually obtained his coal through Bruner & Co., but as they could not fill all his orders, he wanted plaintiffs to fill this and others. Plaintiffs agreed to sell to any of his customers found satisfactory upon inquiry, to bill and ship to them directly, and to pay Cohen his commissions when the bills were paid. After finding that the defendants' standing warranted it, the plaintiffs, on November 3d, 1879, consigned to them a boat load of coal. This was subsequently received by the defendants, who receipted for it on the back of the bill of lading. The bill of lading and receipt were as follows (the defendants being called therein " " " Bodle & Co." by mistake):

S.D. P.

No. 2.

WHITNEY, MCCREARY & KEMMERER,

Coal Merchants.

( 137 South Second street, Philadelphia,

OFFICES: (

( And Mauch Chunk.

CASH ADVANCED BY

____________________ $_______________.

____________________ $_______________

Shipment.

TRENTON, N. J., Nov. 3d, 1879.

No. 136.

Received from WHITNEY, MCCREARY & KEMMERER, on board Canal Boat 823, whereof I am Master, 97 Tons, 15 cwt., Upper Lehigh Broken Coal, which I promise to deliver without unnecessary delay, (the risk of navigation excepted,) to Bodle & Co., or order, at Gunners Run, Philada, paying freight thereon at the rate of $______ per ton. Tolls and Towing paid by J. A. Anderson, Supt.

C. SCHAIBLE, Master.

Capt. to hold Guy.

(Indorsed.)

T. Cwt.

Rec'd 97--15--Upper Lehigh Broken Coal as per receipt.

BRADLEE & CO.

The plaintiffs entered the sale in their books to the account of the defendants, and a few days later sent them a bill for the same, which, however, they never received. Soon after the receipt of the coal, the defendants, at Cohen's request, gave him a check therefor, at $3.40 per ton, under date of November 11th, 1879, at their works, Cohen rendering a bill on a piece of paper (without heading), found in their countingroom, and receipting for the money in the defendants' receipt book. Shortly after this Cohen absconded, without making any return of the money to the plaintiffs.

The plaintiffs made no personal demand of payment for the coal until the latter part of December, 1879, when for the first time they learned that the defendants had paid Cohen, and that they declined to recognize the plaintiffs as the sellers.

There was no doubt but that plaintiffs and defendants both acted in entire good faith. The defendants received the coal as coming from Cohen, and did not concern themselves with any inquiry as to his authority over it, nor did they notice the absence of any indicia of his ownership of the coal during the transaction. They claimed that they supposed they were dealing with him as principal.

The plaintiffs, on the other hand, claimed to have regarded Cohen simply as a broker or middle-man working for his commissions, and contended that they would not have trusted him either as principal or agent.

Upon this state of facts, after reviewing the authorities the referee found for the plaintiffs for the full amount of their claim, with interest and costs.

To this report the defendants excepted, because the referee failed to find from the evidence, (1) that the defendants purchased the coal from Cohen and paid him for it, and had not given the plaintiffs any order for it; or (2) that plaintiffs had been negligent in not giving defendants notice that they were the sellers of the coal until Cohen had absconded; or (3) that plaintiffs had constituted Cohen their agent; and finally, because the referee found for the plaintiffs and awarded to them the amount of their claim, with interest and costs, and directed a judgment to be entered against the defendants.

The referee filed a supplementary report dismissing these exceptions, whereupon judgment was entered for the plaintiffs, in accordance with the referee's finding. The defendants took this writ, assigning for error the dismissal of their exceptions and the said judgment.

John S. Gerhard, for plaintiffs in error.--The question is, who accredited Cohen and put him in the way of committing the fraud. We claim the evidence shows that plaintiffs below did by furnishing him the coal, and failing to advise the defendants below of their relation to the transaction. When one of two innocent persons must suffer by the fraud or negligence of a third, whichever of the two has accredited him ought to bear the loss: Mundorff v. Wickersham, 13 P. F. S., 89; Aull v. Colket, 2 W. N. C., 323; Merchants Bank v. Bank of the United States, 4 Rawle, 322. The defendants below dealt bona fide with Cohen as principal without knowledge of his agency, and having paid him they have a right to set off this payment against any claim by Whitney & Kemmerer: Frame v. Wm. Penn Coal Co., 1 Out., 309; Story on Agency, §§ 420, 421; 2 Kent. Com., 632.

Silas W. Pettit and John R. Read, for defendants in error.--Defendants below had full notice, from the known insolvency of Cohen, and from the character of the card which he handed them, that he was merely a broker; and when they received the coal they accepted it after full notice of the contents of the bill of lading, which showed plainly that the coal was the property of Whitney & Kemmerer, and in the custody and under the control of their agent, the master of the canal boat. Even if Bradlee & Co. supposed Cohen to be a broker with authority to sell them on credit, they had no ground for the presumption that he was authorized to collect the price: Seiple v. Irwin, 6 Casey, 513. Cohen was never entrusted with possession of the coal, and the presumption was, therefore, that he was a mere broker, not a factor, and that he had no authority to collect money for the owners and sellers of the coal: Crosby v. Hill, 39 Ohio St. 100.

Mr Justice CLARK delivered the opinion of the court, February 23d, 1885.

By agreement of the parties in this case, trial by jury was dispensed with, and the matters at issue were submitted to the decision of a referee, learned in the law, under the provisions of the Act of 14th May, 1874. The questions now presented for our consideration arise upon exceptions filed to the report of the referee. It has been frequently held in this court that a writ of error,...