Ellsworth v. Campbell

• Decision Date: 01 February 1893
• Citation: 87 Iowa 532,54 N.W. 477
• Parties: ELLSWORTH v. CAMPBELL ET AL.
• Court: Iowa Supreme Court

87 Iowa 532

54 N.W. 477

ELLSWORTH

v.CAMPBELL ET AL.

Supreme Court of Iowa.

Feb. 1, 1893.

Appeal from district court, Hardin county; S. M. Weaver, Judge.

Action against the defendants, as commission merchants, for the balance claimed to be due from them as proceeds of sales of cattle shipped by plaintiff. Trial to court. Judgment for plaintiff. Defendants appeal.Huff & Ward, for appellants.

C. E. Albrook, F. M. Williams, and Nagle & Birdsall, for appellee.

KINNE, J.

1. The following facts are either admitted in the pleadings or established upon the trial. Plaintiff had 204 fat steers on his farm in Wright county, Iowa, in June, 1890. In that month he entered into the following contract of sale with one C. M. Brown: “That Chas. M. Brown, of the town of Iowa Falls, Hardin county, Iowa, has this day purchased of E. S. Ellsworth, of the same place, one hundred and ninety-eight (198) head of two and three years old fat steers, now being fed on the farm of E. S. Ellsworth, in section 21, township 91, range 23, Wright county, Iowa, in a lot of 204 head, at four ($4) dollars per 100 weight on said farm, the freight to be paid by the said Brown, and the purchase to net the said E. S. Ellsworth $4 per 100 weight on said farm, said cattle to be weighed twelve hours off feed and water, from 7 o'clock P. M. to 2 o'clock A. M.; to be taken by the said Brown before the 1st day of July, 1890; and twenty-four hours' notice to be given to the said Ellsworth of the time of taking the said cattle. And the said C. M. Brown this day makes payment on the above purchase, by check on Campbell Bros., Chicago, Ills., in the sum of $1,000, which check, if paid, is to apply on said purchase. It is also hereby agreed by the said Chas. M. Brown that the said cattle shall be shipped in the name of E. S. Ellsworth, and the proceeds of the sale thereof to be paid to the said E. S. Ellsworth until the purchase price is paid, and the balance to be paid to the said C. M. Brown. C. M. Brown. Dated at Iowa Falls, Iowa, June 13, 1890.” The check of $1,000 was drawn on Campbell Bros., (defendants,) was placed to the credit of plaintiff in the First National Bank at Iowa Falls, Iowa, and on the same day forwarded by it to its Chicago correspondent for collection. June 14, 1890, the day after said contract had been entered into, and said check drawn, plaintiff wrote defendants as follows: “By the way, I made sale to Charles M. Brown, of this place, yesterday, 198 head of good cattle, to go July 1, and he drew on you for $1,000 as payment on them. When the cattle arrive you will find them of far better quality than anything that has come to you, I think, for a long time.” Defendants received this letter June 15, 1890, and on the next day paid said check of $1,000. Defendants, when they paid the check, had no knowledge touching the sale of the cattle, except such as the letter above set out conveyed to them. That, if defendants had known at and before they paid the check of the terms and conditions of the contract above set out, they would not have paid it. Nor would they have paid it in advance of the cattle being shipped, but for the fact that they had received plaintiff's letter, advising them of the sale of the cattle to Brown. The cattle remained on plaintiff's farm until shipped by Brown. They were thus shipped by Brown, in plaintiff's name, and consigned to the defendants, at Chicago, Ill. The cattle were shipped in three lots on June 22, 26, and July 7, 1890, with directions by letter from plaintiff to sell the same, and to remit the net proceeds to him. The net proceeds of the first two shipments were remitted to plaintiff, and, out of the net proceeds of the last shipment, defendants deducted the $1,000 paid on the check aforesaid. The net proceeds of all the cattle was $8,333.01, of which plaintiff received $7,333.01, and also the proceeds of the $1,000 check. The cattle sold in Chicago for over $1,100 less than they weighed out at plaintiff's farm at $4 per hundredweight, as provided in his contract with Brown. Some other facts about which some conflict exists in the evidence, we may find it necessary to allude to hereafter.

2. It will be observed that, including the $1,000 check, plaintiff has in fact received the entire net proceeds of the sales of the cattle in Chicago. But he claims that the $,1000 check should not be charged to him as a part of the proceeds of the cattle sold, but that that $1,000 was advanced by defendants to Brown. Plaintiff claims (1) that he has a vendor's lien on the cattle for the purchase price provided in his contract with Brown; (2) that the lien of the factor or commission merchant does not attach until he gets possession of the property. Defendants claim (1) that plaintiff, by his letter and conduct, is estopped from claiming anything of them by virtue of the terms of the contract with Brown; (2) that they were entitled to a lien on the cattle as soon as they came into their hands as commission men for sale; (3) that as the contract relied upon by plaintiff was between him and Brown, and defendants were not parties to it, and had no knowledge of it,...