Howatt & Co. v. Davis & Chalmers

• Decision Date: 09 February 1816
• Parties: Howatt & Company v. Davis & Chalmers
• Court: Virginia Supreme Court

19 Va. 34

Howatt & Company v. Davis & Chalmers

Supreme Court of Virginia

February 9, 1816

[Syllabus Material]

The appellees brought a special action on the case against the appellants in the District Court of Suffolk. The declaration was in the following words: " District composed of the counties of Norfolk, Isle of Wight, Princess Ann, Nansemond and Southampton, to wit, John G. Davis and John Chalmers merchants, trading as partners under the firm of Davis &amp Chalmers, complain of James Howatt, James Thorburn and ___ Donaldson, trading under the firm of James Howatt & Company, in custody, & c, of a plea of trespass on the case, for that, whereas, on the 30th day of July, in the year of our Lord 1802, and from that time to the present day, the said plaintiffs were merchants trading as partners, and residing in the town of Petersburg, in the state of Virginia, and the said defendants, on the said 30th day of July, in the year of our Lord 1802, and from that period, 'till the present day, were commission merchants and partners, residing in the borough of Norfolk, in the state of Virginia, there carrying on business as agents and factors, for a reasonable and accustomed commission or compensation to be paid to them by those who employed them as factors or agents to sell and dispose of the property of those principals or constituents; and, by the law of the land, persons acting as factors and agents aforesaid, are bound to obey all the legal and proper orders and instructions of their principals and constituents; and whereas the said plaintiffs, on the said 30th day of July, being possessed of 50 hogsheads of tobacco, of Petersburg inspection, on the same day and year, in the borough of Norfolk, within the county of Norfolk aforesaid, delivered the said 50 hogsheads of tobacco into the hands and possession of the said defendants, as their agents and factors, to be disposed of by them for a reasonable and accustomed commission and compensation, to be paid to them by the plaintiffs, and in conformity with certain legal and proper orders and instructions given by the plaintiffs to the defendants; yet the said defendants, acting as agents and factors aforesaid, afterwards, to wit, on the 6th day of August, in the year of our Lord 1802, at Norfolk aforesaid, contrary to the legal and proper orders and instructions of the plaintiffs, did dispose of the said 50 hogsheads of tobacco; --and whereas, by the law of the land, an agent and factor is bound to obey every legal and proper order and instruction of his principal; and whereas the said plaintiffs, on the 30th day of July, in the year of our Lord 1802, being merchants residing in Petersburg, did constitute and appoint the said defendants (who then were and still are merchants residing in Norfolk,) their agents and factors to sell and dispose of 50 other hogsheads of tobacco of the Petersburg inspection, for the benefit of the said plaintiffs; and the said defendants, acting as agents and factors aforesaid, for a reasonable and accustomed commission and compensation, on the 10th day of August in the same year, at Norfolk, within the county of Norfolk aforesaid, and the jurisdiction of the court, did contract with John Cowper & Company, (then merchants in good credit residing in Norfolk,) to sell to the said John Cowper & Co. the said 50 hogsheads of tobacco, at the price of 29 shillings per hundred weight, for which the said defendants were to receive of the said John Cowper & Co., 50 barrels of pork, at the rate of $ 15 per barrel, and to accept the promissory note of said John Cowper & Co. payable at three and four months after the delivery of the tobacco, for the residue of the purchase money of the tobacco; and, afterwards, on the same day and year at Norfolk aforesaid, the said defendants received of the said John Cowper & Co. the said 50 barrels of pork; and whereas, afterwards, to wit, on the 31st day of August, in the year of our Lord 1802, at which time the said 50 hogsheads of tobacco had not been delivered to or come into the possession of the said John Cowper & Co., but were still in the possession of the defendants, as agents and factors of the plaintiffs, the said Chalmers & Davis,...