Mershon v. Wheeler

• Decision Date: 08 April 1890
• Parties: MERSHON ET AL. v. WHEELER ET AL.
• Court: Wisconsin Supreme Court

76 Wis. 502

45 N.W. 95

MERSHON ET AL.

v.WHEELER ET AL.

Supreme Court of Wisconsin.

April 8, 1890.

Appeal from circuit court, Milwaukee county.Winkler, Flanders, Smith, Bottum & Vilas, for appellants.

Shepard & Shepard, for respondents.

COLE, C. J.

This is a contest between Moors & Co., of Boston, and the respondents, merchants of Chicago, for certain moneys garnished as the property of E. S. Wheeler & Co., of New Haven, Conn. The moneys have been paid into court by the garnishees, and the question in the case is, can Moors & Co. hold them, or are they liable to attachment and garnishee process by the creditors of Wheeler & Co.? The facts upon which Moors & Co. claim the money are, in substance, these: In May, 1887, Moors & Co., bankers, issued a letter of credit to E. S. Wheeler & Co. of Liverpool, England, authorizing them to draw upon Morton, Rose & Co., of London, for £10,000, for account of E. S. Wheeler & Co. of New Haven, Conn. These drafts were to be for the invoice cost of merchandise to be shipped to Atlantic ports in the United States, and were to be accompanied by consular in voices and bills of lading to order, and indorsed to Moors & Co. The latter were to pay, or provide for the payment of, these drafts thus drawn. On the back of the letter of credit, E. S. Wheeler & Co. of New Haven executed an agreement by which they bound themselves to furnish Moors & Co. bankers' bills on London of the same amount, to meet these drafts, before maturity of the same, or pay the equivalent thereof in cash at current rates of exchange, and also agreed to pay certain specified commissions for the acceptances of Moors & Co. They further pledged and gave Moors & Co. a specific claim and lien on all goods and merchandise, and the proceeds thereof, which the latter might pay for under the arrangement by reason of the letter of credit, and also all the bills of lading and policies of insurance to an amount sufficient to cover all advances or engagements under such credit, with full power for Moors & Co. to take possession and dispose of the same for their security or reimbursement. The securities which Moors & Co. might receive were to be held by them as security for any other indebtedness or liability which might exist between the parties. E. S. Wheeler & Co. was the name under which E. S. Wheeler did business in this country. He was also a member of the Liverpool firm to whom the letter of credit ran. In July, 1887, E. S. Wheeler & Co. of Liverpool, at the request of E. S. Wheeler of New Haven, shipped, by the steamer Sarmatian, 715 boxes of tin plates and 214 boxes of tin plates, taking separate bills of lading therefor, executed in triplicate, by which the carrier undertook to transport the first lot from Liverpool to Chicago, and the other lot from Liverpool to Milwaukee. Drafts were drawn for the invoice price of the goods shipped, and the bills of lading were indorsed: “Deliver to Moors & Co. or order.” In July, 1887, E. S. Wheeler & Co. of New Haven requested Moors & Co., by telegraph, to send the documents for the Sarmatian shipments to the custom-house agent of the Grand Trunk Railway at Montreal. The goods were to be delivered by the steamer at the port of Montreal to the Grand Trunk Railway, to be forwarded by such company to their destination. Moors & Co. thereupon forwarded to the said customs agent a consular invoice and bill of lading for the 715 boxes of tin plates, and a consular invoice and bill of lading for the 214 boxes of tin plates, with instructions to forward the freight to Chicago and Milwaukee, as called for by the bills of lading, and by letter so informed E. S. Wheeler & Co. of New Haven, sending them at the same time a consular invoice and the bill of lading for the 715 boxes, and also a consular invoice and bill of lading for the 214 boxes, indorsing the bills: “Deliver to E. S. Wheeler & Co. or order.” They at the same time sent by mail an instrument to E. S. Wheeler & Co. of New Haven relating to both lots of tin plates, which E. S. Wheeler & Co. signed at New Haven and returned to them. By the material part of this instrument, E. S. Wheeler & Co. acknowledged the receipt from Moors & Co. of the merchandise per steamer Sarmatian, as specified in bill of lading describing the property, in all 214 boxes of tin plates, and added: “Which we hereby agree to hold in trust as their property, with proper insurance, but with liberty to sell and deliver said merchandise to purchasers for the sum of not less than $4,845, payable in cash on order before October 5, 1887; we further hereby agreeing to deliver to said Moors & Co. the proceeds of said merchandise until the acceptances given or to begiven for the purchase money of said merchandise under credit issued for our account shall have been paid or satisfactorily provided for, with the understanding that the said J. B. Moors & Co. are not to be chargeable with any expenses incurred thereon,--the intention of this agreement being to protect and preserve unimpaired the lien of J. B. Moors & Co. on said merchandise.” The 214 boxes of tin plates arrived at Milwaukee, August 13, 1887, and were entered at the custom-house, and afterwards were delivered to a customhouse broker to whom E. S. Wheeler & Co. had sent two bills of lading indorsed to them by J. B. Moors & Co. for that purpose. The broker delivered said boxes to the garnishees, according to the instructions of E. S. Wheeler & Co., on August 16 and 17, 1887.

The moneys in controversy are the proceeds of these tin...