Govan v. Cushing

• Decision Date: 22 December 1892
• Citation: Govan v. Cushing, 111 N.C. 458, 16 S.E. 619 (N.C. 1892)
• Parties: GOVAN v. CUSHING et al.
• Court: North Carolina Supreme Court

16 S.E. 619

111 N.C. 458

GOVAN v. CUSHING et al.

Supreme Court of North Carolina

December 22, 1892

Appeal from superior court, Buncombe county; JAMES H. MERRIMON Judge.

Action by Arthur A. Govan, trading as Govan & Co., against Chauncey D. Cushing and S. F. Chapman, trading as Cushing & Chapman to recover for overdrafts made by defendants on account of certain shipments of logs to plaintiff at Glasgow, Scotland to be sold on commission. The fourth defense made by the answer was as follows: That the plaintiff, by his negligence carelessness, mismanagement, and inattention to business as commission merchants, suffered the said logs to be sold at a much lower price than they should have brought on the market of Glasgow, Scotland; and that, if due diligence had been used by the plaintiff in the handling and sale of said logs, they would have brought a price that would have been far more than sufficient to pay and discharge all advances made by the plaintiff to the defendants, by reason of which these defendants have been damaged, etc. The court charged that, as the defendants alleged in their answer that the plaintiff, by his negligence, carelessness, mismanagement, and inattention to business as a commission merchant, suffered the defendants' logs to be sold at a lower price than they should have brought, the burden was upon them to satisfy the jury that the plaintiff did by his negligence or carelessness, or by his mismanagement or inattention to business as a commission merchant, suffer their logs to be sold for a lower price than they should have brought, and that they must satisfy the jury by a preponderance of the evidence. The defendants excepted to this part of the charge, and insisted that, as it was peculiarly within the plaintiff's knowledge whether the logs were or were not sold at a lower price than they should have brought, the burden was upon him, and upon the further ground that, plaintiff being a commission merchant, it was for him to show that he used diligence in the sale of the logs. There was no other exception. The issues submitted to the jury and their answers were as follows: "(1) Is the firm of Govan & Co. composed of Arthur A. Govan alone? Yes. (2) Did the plaintiff, by his negligence, carelessness, mismanagement, and inattention to business as a commission merchant, suffer defendants' logs to be sold at a lower price than they should have brought? No. (3) Were the logs of the defendants obtained from them by the plaintiff by means of false, fraudulent, and corrupt representations as to the value of said logs in the markets of Glasgow, Scotland, and London and Liverpool in England? No. (4) What damages, if any, are the defendants entitled to recover? None. (5) Are defendants indebted to the plaintiff, and, if so, in what sum? Yes; $2,475.17, with legal interest." Judgment was given for plaintiff. Defendants appeal. Affirmed.

Where, in an action by a factor to recover for overdrafts, the principal asserts affirmatively the negligence of the factor in allowing his products to be sold for less than the market price, the burden is on him to prove the assertion; the market price ruling at the time not being so peculiarly within the knowledge of the factor as to shift the burden, even though the sales were in a foreign city.

Thos. A. Jones and T. F. Davidson, for appellants.

Chas. A. Moore, for appellee.

MACRAE J.

It will be observed that the exceptions are directed to the charge of his honor upon the second issue. The issue was raised by the fourth defense in the answer, and the reply thereto. The second to the ninth articles of the complaint, inclusive alleged the receipt upon consignment by plaintiff from defendants of numerous shipments of walnut logs, to sell on commission, and the advancement by plaintiff's agent to defendants of specified sums of money on each consignment; the sale of said logs by plaintiff at the best price he could obtain, for sums which, after deducting freight and all proper commissions, charges, and expenses, realized to the plaintiff specified sums, much less in each instance than the amounts alleged to have been advanced to defendants upon each consignment; and alleging an indebtedness from defendants to plaintiff for said sums, with interest. The corresponding articles of the answer admitted that the defendants were paid the sums as set out in the complaint, and the consignments of logs as alleged, but denied, for want of information sufficient to form a belief, all other allegations in said paragraphs. The eleventh article of the complaint alleged that no part of said amounts due by defendants to plaintiff has been paid, and the answer denied these allegations, and averred that defendants owed plaintiff nothing. The issues raised upon these allegations and denials were very properly comprehended in the one issue, (No. 5:) 'Are defendants indebted to plaintiff, and, if so, in what sum?" There seems to have been no objection to this issue, and, as the charge upon it is not set out in the case,...