Haskins v. Warren

• Citation: 115 Mass. 514
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Decision Date: 07 September 1874
• Parties: Horace Haskins & another v. George W. Warren & others

115 Mass. 514

Horace Haskins & another v. George W. Warren & others

Supreme Court of Massachusetts

September 7, 1874

Argued November 18, 1872. [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Suffolk. Replevin of 70 bales of cotton. Writ dated December 9, 1868. At the trial in the Superior Court, before Devens, J., the following facts appeared: J. N. Brooks, one of the firm of J. N. Brooks & Co., cotton brokers of Boston, who were employed by the plaintiffs to sell this cotton, on Friday, December 4, 1868, went to the office of Jenkins Brothers & Chipman, cotton dealers in Boston, and offered the cotton to them for sale; they made an offer for it, which was communicated by Brooks to the plaintiffs, and by them declined; and the plaintiffs then informed Brooks that he might sell it at twenty-five cents per pound. Brooks then went to Jenkins Brothers & Chipman and offered to sell it to them at that price, and they accepted the offer, remarking that the price was the highest in the market, but that they had a place for the cotton. These transactions on the part of Jenkins Brothers & Chipman were conducted by Henry W. Jenkins, a member of the firm, with whom Brooks was well acquainted. Nothing was said as to the time of payment. Brooks, upon returning to his office, directed his partner to enter the sale, and some questions arose between Brooks and his partner whether the name of the purchasing firm had not been changed. Brooks's partner made out a sale note of the cotton on December 4, 1868, and sent it on the same day to the plaintiffs' store in Boston, and they received it on the afternoon of that day, the sale note, when so sent, containing the name of Jenkins Brothers & Co. as purchasers. There was at that time in Boston a firm by the name of Jenkins Brothers & Co., who sometimes purchased cotton; but the plaintiffs did not know that firm except by name, and did not know their place of business, nor who composed the firm, and had never had any dealings with them. There was evidence tending to show that Jenkins Brothers & Chipman, on the afternoon of the same day, sent their cotton sampler, Dennis Driscoll, to the plaintiffs' store, on Broad Street, Boston, to sample the cotton; and that he went there and informed Montague, one of the plaintiffs, that he had been sent by Jenkins Brothers & Chipman to sample the cotton; that Montague replied that it was not usual to sample cotton before it was weighed, and told Driscoll where he could get at the cotton, and that Driscoll sampled it the same day, and took the samples to Jenkins Brothers & Chipman.

Samuel L. Montague, one of the plaintiffs, called as a witness on his own behalf, testified on direct examination that his firm owned the cotton replevied; that on Friday, December 4, he found the sale note on his desk made out to Jenkins Brothers & Co.; that he gave orders that night to have the cotton, which was then in a loft, lowered down and weighed and left in the store; that it was to be weighed by persons employed by his firm; that it was lowered down and weighed the next morning; that he left the store between nine and ten o'clock, and on his return, about one o'clock, the cotton had been delivered on an order signed by Jenkins Brothers & Chipman; that he then went to Brooks & Co., showed them the order, and told them that the sale note had been written Jenkins Brothers & Co., and he supposed the cotton had been sold to them; that Brooks & Co. said they supposed the cotton had been so sold; but on looking at the directory they found that it was Jenkins Brothers & Chipman; that the witness about Saturday afternoon altered the sale note by changing "& Co." to "& Chipman." That the practice is, after cotton is weighed, for the weigher to make a certificate and hand it to the seller; that in this case the certificate was attached to the bill and sent by mail to Jenkins Brothers & Chipman on Saturday or Monday. On Tuesday, December 8, the witness heard of the failure of Jenkins Brothers & Chipman, and on Wednesday morning found the cotton on board a vessel at constitution Wharf.

On cross-examination the bill of the cotton was produced, and was as follows: "Boston, December 4, '68. Messrs. Jenkins, Bros. & Chipman, To Haskins & Montague Dr. To 70 bales 30,402 lbs. -- 7600.50." The witness also testified that the transaction was so entered on the books of his firm.

Horace Haskins, one of the plaintiffs, testified that on December 8, he went to the store of Jenkins Brothers & Chipman and demanded payment for the cotton, and was told by Jenkins that he could not pay for it, that his firm had stopped payment. On cross-examination this witness testified that the cotton replevied was bought by a person named Mead in Charleston, South Carolina, who shipped it to the plaintiffs and drew for the whole amount of the expenses; that the plaintiffs were to sell the cotton, and if there was any profit Mead was to have one half; that if there was a loss the plaintiffs would have to stand the loss, as Mead was not a man of pecuniary responsibility, unless there was a profit on another lot.

It also appeared in evidence that the cotton was lowered down from the plaintiffs' loft and weighed on the morning of December 5, and that on the same morning on which it was weighed, Jenkins Brothers & Chipman directed Johnson & Co., teamsters, to go and get the cotton and carry it to the defendants' storehouse on Constitution Wharf, and Johnson & Co. sent by one of their teamsters an order of Jenkins Brothers & Chipman to the plaintiffs' store for the cotton, and the order was delivered on the same morning at the plaintiffs' store by the teamster, to one Hill, who was in the employment of the plaintiffs, and a part of whose business, generally, it was to deliver cotton from their store. Hill testified that he told the teamster bringing the order that he had no authority to deliver it, and no orders to deliver it; and that the teamster said it was all right, and that the teamsters proceeded to load it, and did load it on their trucks and carted it from the store. That he did not prevent its going because he supposed the plaintiff Montague was then at Jenkins Brothers & Chipman, and might have sent down for it. The evidence was conflicting on this point, the teamsters swearing that nothing of the kind was said, and that there was no refusal to deliver it; and there was evidence tending to show that Montague was at the store when the teamsters went there and delivered the order, and that the lowering down from the loft and weighing and loading were going on at the same time, and that the plaintiffs' men assisted the teamsters; but there was a conflict of evidence on this point.

There was also evidence tending to show, and there was no evidence to the contrary, that the sale note, bill and certificate of weights were received by Jenkins Brothers & Chipman, -- a copy of the said sale note ^[*] is in the margin.

There was also evidence tending to show, and there was no evidence to the contrary, that the cotton was carried by the teamsters to the storehouse of Warren & Co. on December 5; that nothing further was done by the plaintiffs until the afternoon of Tuesday, December 8, 1868, when the plaintiffs having heard of the failure of Jenkins Brothers & Chipman on that day, the plaintiff Haskins, as testified to by him, applied to them to pay for the cotton, and Jenkins Brothers & Chipman informed him that they were unable to do so; that they had sold the cotton and got their pay for it. On the next day the plaintiffs replevied the cotton.

There was also evidence tending to show that the defendants, prior to October, 1868, had lent money to Jenkins Brothers &amp Chipman on cotton as security, and that in pursuance of an agreement to lend them $ 25,000 on cotton as security, on the basis of a bale to every $ 100, on October 20, 1868, lent them $ 5,000, receiving a bill of lading for 42 bales of cotton, and on October 24, 1868, lent them $ 10,000, receiving a bill of lading of 101 bales of cotton, and on October 27, 1868, lent them $ 10,000 receiving a bill of lading of 100 bales of cotton, making together a loan of $ 25,000, and the security being 243 bales of cotton; that to suit the convenience of Jenkins Brothers & Chipman, the defendants, in pursuance of an understanding made at the time of this loan, had from time to time, prior to said December 5, delivered up the cotton, or bills of lading held by them as security, upon receiving other cotton or the bills of lading therefor as security, in place of the cotton so delivered; and that on the morning of said December 5, Warren & Co. having 212 bales of cotton as security for this loan, Henry W. Jenkins, in behalf of his firm, applied to the defendants to give them, Jenkins Brothers & Chipman, a negotiable storage receipt for 94 of the bales of cotton which the defendants thus held as security, promising that he would send in as security 96 bales of cotton in substitution, and stating that he had agreed to sell the 94 bales. That the defendants on the same day directed their clerk, F. A. Downing, to make out and sign such storage receipt, and upon the receipt of the cotton in substitution, to deliver the storage receipt to Jenkins Brothers & Chipman; that this clerk accordingly drew up the storage receipt and signed it, and upon the receipt on said December 5, into the defendants' warehouse of 86 bales of cotton from Jenkins Brothers & Chipman, in substitution (of which...