Davis v. Kobe

• Decision Date: 17 December 1886
• Citation: 30 N.W. 662,36 Minn. 214
• Parties: DAVIS v KOBE.
• Court: Minnesota Supreme Court

36 Minn. 214

30 N.W. 662

DAVISvKOBE.

Supreme Court of Minnesota.

December 17, 1886.

(Syllabus by the Court.)

A factor, to whom wheat is consigned for storage in an elevator and for sale, may, in the absence of particular instructions, store it in a mass with other wheat of the same grade and quality.

A factor is not responsible to his principal by reason of the established grades of grain being different in the market where he is to sell from the grades at other places.

Where a factor has made large advances to his principal upon the property consigned for sale, and the property becomes doubtful security for his reimbursement, and the principal refuses or neglects to comply with his reasonable demands to repay or secure him for such advances, the factor may, after reasonable notice to his principal, in good faith, and with reasonable discretion, sell the property, although directed by the principal to hold it longer.

Appeal from district court, Morrison county.

W. W. Billson, for respondent, Davis.

Bruckhart & Reynolds, for appellant, Kobe.

DICKINSON, J.

A factor or commission merchant, to whom wheat is consigned for storage in an elevator, not a private warehouse, and for sale, may store it in a mass in a bin with other wheat of the same grade and quality, in the absence of instructions from the consignor to the contrary. It has become a matter of common knowledge that such is the customary manner of storing wheat in our general commercial elevators, and of this the courts should not affect ignorance, but should take judicial notice without proof. The fact that the wheat is of the grade known as “condemned,” creates no exception to the rule. There was therefore no error in that part of the charge of the court referred to in the appellant's first assignment.

The court did not err in instructing the jury that if the consignor shipped this grain to his factor at Duluth to be sold there, and the grade at Duluth was not as good as at the place of shipment, the consignor must bear the loss, in the absence of special instructions to his factor. This was only saying, in other words, that the factor, in executing his agency by selling in the Duluth market, would not be responsible to his principal in respect to the grades established at that place. The principal assumed the risk of that when he selected his market.

The court properly instructed the jury that the factor was justified in selling the wheat, notwithstanding the request of the...