Burke v. Davis

• Decision Date: 17 July 1897
• Docket Number: 380.
• Citation: Burke v. Davis, 81 F. 907 (7th Cir. 1897)
• Parties: BURKE v. DAVIS. [1]
• Court: U.S. Court of Appeals — Seventh Circuit

81 F. 907

BURKE v. DAVIS. ^[1]

No. 380.

United States Court of Appeals, Seventh Circuit.

July 17, 1897

This was a suit in equity by William H. Burke against Frank L Davis. From a decree entered on the report of a master complainant appeals.

The facts stated in the bill are substantially these: In the year 1888 the complainant, the appellant here, was engaged in the manufacture, importation, and sale of marble and mosaic decorations for buildings, having establishments at Chicago Buffalo, New York, London, and Paris. During the time from August, 1889, to July, 1891, he imported large quantities of marbles and mosaics, to be entered at the ports of Chicago and St. Louis, and, for convenience, consigned to the defendant and appellee, Davis, who was in his service as a clerk or agent at Chicago. This course was adopted for convenience on account of the frequent absences of the complainant. Many controversies arose concerning the duties chargeable on the goods imported, and appeals were taken and prosecuted in the name of Davis from the decisions of the collector to the board of general appraisers, and, in many instances, from that board to the courts. These appeals were successful, and resulted in allowances and judgments in the name of Davis in amounts exceeding $9,000. On June 30, 1891 Davis left the service of the complainant, and upon demand made refused to execute an assignment of the judgments and claims so standing in his name. Thereupon the bill was filed, alleging the facts stated, and praying that the defendant be decreed to assign to the complainant the judgments and claims, and, pending the suit, restrained from collecting, selling, or otherwise disposing of the same. A demurrer to the bill having been overruled, the defendant answered, admitting the importation of the merchandise described in the bill and the schedules attached thereto and the recovery of judgments in his name for the excessive duties paid, but denying the complainant's interest in the judgments and claims, denying that the defendant was the clerk, agent, or representative of the complainant, denying that the merchandise imported in his name was the property of the complainant, and alleging that he paid the duties and prosecuted the appeals for the recovery thereof for himself, and not as agent or trustee for the complainant. The answer avers affirmatively that in the month of August, 1888, the defendant became connected in business with the complainant upon these terms, viz.: That the defendant was to take charge and management of the business in Chicago for three months at $10 per week, and that he took charge and management of the business under an agreement that at the expiration of three months, in case his services should prove satisfactory to the complainant, and he should desire to continue in charge of the business, another arrangement should be made; that at the expiration of the three months the complainant and defendant entered into a new agreement, whereby the defendant agreed to continue in charge and management of the business and the complainant agreed that he should receive a portion of the profits realized, according to the amount of business done and the profits accruing therefrom; that under the arrangement he continued in charge until July 1, 1891, meanwhile procuring and superintending the performance of a large number of contracts from which a large profit was derived; that on or about July 1, 1891, he requested the complainant to make an accounting and settlement of the amount and share of the profits due him, which complainant refused to do, and thereupon he withdrew from the further management of the business; that the profits which accrued amounted to at least $55,000; that the amount equitably due the defendant is at least the sum of $10,000, which the complainant refuses to pay; and that, even if complainant should be found to be the equitable owner of the judgments and claims set forth in the bill, he should be compelled to pay the defendant the amount due him before the defendant is ordered or directed to assign to the complainant the judgments and claims in controversy. A replication was filed, and the case referred to a master, whose report, after stating the issues, proceeds as follows:

'Upon this hearing a large amount of testimony has been taken which is herewith reported, and made a part hereof, and I have heard the arguments of counsel at length, upon consideration of all which I find and report: That to the extent hereinafter stated; that the consignments of merchandise referred to in the bill were made as therein stated, and that the defendant, Frank L. Davis, received the same as the consignee of the complainant, having no interest therein, but acting as the agent and representative of the said complainant in respect thereto, having been named as such consignee for the purpose of convenience, the said complainant at the time being a citizen of London, England, engaged in the manufacture and importing of said articles in said city and in Paris, France. I find that during the time of such importations, and the proceedings had thereunder, the defendant, Frank. L. Davis, was no a partner, as originally claimed, in the firm of Burke & Co., consignors, and had no interest in said consignments, or control over them, except such as might result to him through the nature of his employment, and was necessary for the purpose of his local representation herein in connection with the firm of Burke & Co., and is not beneficially interested in the result of the proceedings which have been had in regard to said property; the use of his name as plaintiff in said proceedings resulting and having become necessary only by reason of his having been, for purposes of convenience, named as consignee in said cases. I find, therefore, that the complainant, doing business under...