Oliver v. Robert Moore & Co.

• Decision Date: 31 October 1873
• Citation: 59 Tenn. 482
• Court: Tennessee Supreme Court
• Parties: J. N. Oliver and others v. Robert Moore & Co.

59 Tenn. 482

J. N. Oliver and others

v.Robert Moore & Co.

Supreme Court of Tennessee.

October Term, 1873.

FROM SHELBY.

From the Law Court of Memphis, February Term, 1869. H. S. LEE, J.

C. W. METCALF and T. B. EDGINGTON, for Plaintiffs.

HENRY B. SMITH, for Defendants.

NICHOLSON, C. J., delivered the opinion of the Court.

Robert Moore & Co. were cotton factors at Cincinnati, having a house at Memphis, managed by Minor as their agent. Early in 1865, Minor arranged with Peacock to make advances on all the cotton Peacock might ship to Robert Moore & Co. at Cincinnati. Under this arrangement, Peacock made one or more shipments, on which there was a balance of advancements against him of $1,920. In April, 1865, Peacock chartered the steam tug Tom Swan, at Memphis, and, with a permit furnished by Minor for Robert Moore & Co., went down the river, procured about fifty-four bales of cotton, and returned with them to Memphis on the 28th or 29th of April. The cotton was immediately attached by the owners of the boat for the charter debt,--$1,000; but Minor, as the agent of Robert Moore & Co., assumed the debt, as well as the amount of $700 due to the hands on the boat, and procured a release of the attachment, whereupon he made an agreement with Peacock to take possession of the cotton and have it forwarded to Cincinnati to Robert Moore & Co., for sale, when Robert Moore & Co. were, by the agreement, to retain the balance due on former advances, together with the amounts advanced, and the liabilities assumed, on the 29th of April,--the whole amounting to six or seven thousand dollars. About the time the cotton was being transferred from the Tom Swan to another boat, for shipment to Cincinnati, attachments were levied on it by Oliver and others, creditors of Peacock.

Robert Moore & Co. brought replevin against the sheriff, and regained the possession of the cotton. The attaching creditors were afterward substituted as defendants in place of the sheriff.

Robert Moore & Co. claimed a special property in the cotton by virtue of the advances made to Peacock and the contract between Peacock and Minor, the agent of Robert Moore & Co., by which this firm acquired, as alleged by them, a lien on the cotton, to secure their advances made and liabilities assumed, and by which the actual possession of the cotton passed from Peacock to Minor, as agent for Robert Moore & Co.

Oliver and others claim by virtue of attachments levied on the cotton, while, as they allege, the title of the cotton was in Peacock, and while it was in transit to Cincinnati; and they insist that there was no such possession of the cotton acquired by Minor for Moore as vested in him a special property in the cotton for advancements made or liabilities assumed. On this issue proof was taken on both sides. Proof was also taken by the defendants to show that the arrangement between Peacock and Minor, by which the cotton was transferred to Minor for Robert Moore & Co. was made for the purpose of defeating Peacock's creditors. The Circuit Judge charged the jury, that if Robert Moore & Co. were factors, and as such had made advances on the cotton in question, and had obtained possession thereof, either actual or constructive, then, in that case, the cotton was not subject to attachment by Peacock's creditors. That the mere circumstance that the factors had made advances on the cotton, and had paid a part or all of the freight incident to its transportation, would not give them a lien thereon; nor would the possession of the bill of lading give them a lien. That it is the possession of the goods, either actual or constructive, that gives a factor a lien for his advances. That by constructive possession is meant the possession of an agent or servant of the factor. That any transfer, sale, or conveyance, made in order...