Mouat v. Wood

• Decision Date: 20 April 1896
• Citation: 45 P. 389,22 Colo. 404
• Parties: MOUAT et al. v. WOOD.
• Court: Colorado Supreme Court

45 P. 389

22 Colo. 404

MOUAT et al. v. WOOD.

Supreme Court of Colorado

April 20, 1896

Appeal from court of appeals.

Action by Thomas Wood, doing business as Thomas Wood & Co., against John Mouat and John W. Goss. Judgment for plaintiff, which was affirmed by the court of appeals (35 P. 58); and defendants appeal. Affirmed.

Appellee (plaintiff below), whose place of business is in the city of Boston, Mass., being the owner of certain merchandise, placed the same in the hands of the J. M. Clark Commission Company of Denver, Colo., to be held for him, subject to delivery upon his order. He alleges, and the strong preponderance of the evidence tends to show, that he had neither sold the goods to the commission company nor authorized it to sell them for him, but, on the contrary, had simply contracted for their storage for a certain consideration, to be paid monthly. The evidence shows that on or about the 13th day of January, 1891, plaintiff notified the commission company that he did not wish to continue doing business with them, and directed that all of his goods then held by the company should be immediately boxed and returned to him at Boston Mass., 'via Galveston, Morgan Line of Steamships.' The proof further shows that this order was received by the commission company in due course of mail, and that, after receiving the same, it partially complied therewith, by boxing, marking the goods, and placing the same separate and apart from other goods, preparatory to shipment. It further appears from the evidence that the appellants, J. W. Goss and John Mouat, both being directors of the commission company,--the former its president and general manager, and the latter its vice president,--by themselves and in connection with other officers of the company, sold these and other goods to one Martin, and took his notes therefor. It is further shown that at this time the North Denver Bank held the notes of the commission company for a large amount, andl that certain notes of the defendants, Goss and Mouat, were in this bank as collateral security for the notes of the commission company. It also appears that the defendants caused the notes executed by Martin to be deposited in the bank to pay the debt of the commission company, and to relieve the notes of the defendants to that extent. In the district court, the plaintiff obtained judgment for $2,869.65. Upon appeal to the court of appeals this judgment was affirmed, and from this latter judgment this appeal is prosecuted.

Doud & Fowler and R. H. Gilmore, for appellants.

Stuart Bros., C. P. Evans, and E. E. Edmonds, for appellee.

HAYT C.J. (after stating the facts).

There is some conflict in the evidence as to the authority of the commission company to sell these goods prior to the receipt of plaintiff's letter of January 13th, although, we think, the strong preponderance of the evidence is in favor of plaintiff's claim that the commission company had no such right. This question, however is entirely immaterial; for, if it be conceded that such right existed at one time, it was terminated by that letter and neither the company nor any one acting for it had the right to sell the goods after the receipt of that letter. In these circumstances, the instruction of the trial court to the effect that, if the commission company or appellants thereafter sold the goods in controversy, all persons participating in, aiding, or abetting such sale were accountable to the plaintiff for the full value of the goods so sold, was free from error. The liability of the defendants in this case to the extent of the value of plaintiff's goods included in the transfer to Martin is conceded, but it is contended that the evidence shows the value of the goods so converted to be $1,612.38, and no more; it being urged that, in so far as the verdict of the jury and judgment of the court exceed...