Dixie Guano Co. v. Wessel

• Decision Date: 05 February 1924
• Docket Number: 2150.
• Citation: 296 F. 433
• Parties: DIXIE GUANO CO. v. WESSEL et al.
• Court: U.S. Court of Appeals — Fourth Circuit

296 F. 433

DIXIE GUANO CO. v. WESSEL et al.

No. 2150.

United States Court of Appeals, Fourth Circuit.

February 5, 1924

Tazewell Taylor, of Norfolk, Va. (W. R. Ashburn, of Norfolk, Va., on the brief), for plaintiff in error.

Edward R. Baird, Jr., of Norfolk, Va. (Baird, White & Lanning, R Clarence Dozier, and Joseph D. Deal, all of Norfolk, Va., on the brief), for defendants in error.

Before WOODS, WADDILL, and ROSE, Circuit Judges.

WADDILL Circuit Judge.

The defendants in error, plaintiffs in the District Court instituted their suit at law against the plaintiff in error defendant below (hereinafter referred to as plaintiffs and defendant), to recover $4,964.40, the value of 110,320 net pounds of nitrate, alleged to have been feloniously stolen from the plaintiffs by W. B. Tredwell, and wrongfully sold and delivered by him to the defendant, and by it converted to its own use, without the knowledge and consent of the plaintiffs, who never parted with their title to said nitrates, and have never been paid therefor.

Plaintiffs were importers of nitrates, and received a large shipment thereof on the steamship Hesperos, at Lambert's Point Va., which was placed by them through their representative in Jones Storage Warehouse on their account, on or about the 31st of October, 1917. Subsequently, on or about the 24th of December, 1917, two carloads of this nitrate were shipped without the knowledge of the plaintiffs, by direction of said Tredwell, consigned to his own order at Suffolk, Va., and by him sold to the Dixie Guano Company. Plaintiffs had no knowledge of this transaction on the part of Tredwell, or the sale of their nitrates to the defendant, and received no remuneration therefor. Plaintiffs subsequently, in due course of business, by the month of March, 1918, had disposed of all of their nitrate stored in Jones Warehouse, by regular orders of delivery issued through their representative Tredwell, at Norfolk, whom it appears accounted for the sales but made no mention of that to the Dixie Guano Company, the defendant. The sale to the defendant became apparent so far as the plaintiffs were concerned, for the first time when in the summer of 1919 demand was made upon them by the Du Pont de Nemours Company for the quantity of nitrate contained in the two cars in question; it appearing that Tredwell, who also represented the Du Pont Company, had diverted from that company by means of shifting from its pile of nitrates in Jones warehouse, to that of the plaintiffs' pile therein, a sufficient quantity to make good the Dixie shipment. Upon this condition becoming apparent in August, 1919, plaintiffs indemnified the Du Pont Company for the value of the nitrates thus shifted and diverted.

Defendant duly appeared in the suit, denied liability, filed a plea of general issue, and a special plea raising the question of the right of the plaintiffs to recover, because of their failure earlier to discover and inform the defendant of the illegal acts of their representative. Evidence was adduced by the plaintiffs, the defendant offering no testimony, at the conclusion of which both plaintiffs and defendant moved the court to instruct verdicts in their respective behalves. The court overruled the motion of the defendant, and sustained that of the plaintiffs, and instructed the jury to return a verdict for the plaintiffs for the amount sued for. From this action, the writ of error herein was sued out, six assignments of error being made, though Nos. 4, 5, and 6 are relied upon and relate to the court's action in directing a verdict in favor of the plaintiffs; to the failure to grant the defendant a new trial; and particularly to its action in taking from the jury the determination of whether or not the plaintiffs, in the circumstances, exercised due care in discovering the withdrawal of their nitrates, and to timely notify the defendant to the end that it might protect itself.

There seems to have been no dispute upon the facts in the case as to the relation occupied by Tredwell to the nitrate in question and that he was without authority to sell and dispose of plaintiffs' nitrates. Tredwell's liability in these circumstances, as well as that of the defendant, who was unfortunately imposed upon by his conduct, falls strictly within the ruling of this court in the recent case of Richmond Guano Co. v. Du Pont (C.C.A.) 284 F. 803, 808, 809.

The ruling of the District Court covered by the three assignments of error, in taking the question therein presented from the jury, is, in our judgment, free from error. These assignments are based upon the alleged duty of the plaintiffs earlier to have discovered the acts of their agent Tredwell, and to have advised the defendant thereof. This obligation the law did not impose upon them in the circumstances here because the same was predicated upon the supposed liability of the plaintiffs for the failure of their agent to make a report of his fraudulent acts committed against...