Phillips v. Scott

• Decision Date: 31 October 1868
• Citation: 43 Mo. 86
• Parties: JOSEPH PHILLIPS, Respondent, v. CLINGAN SCOTT, Appellant.
• Court: Missouri Supreme Court

43 Mo. 86

JOSEPH PHILLIPS, Respondent,

v.CLINGAN SCOTT, Appellant.

Supreme Court of Missouri.

October Term, 1868.

Appeal from St. Louis Circuit Court.

Hitchcock & Lubke, for appellant.

I. The proof made--that plaintiff had received the original letters--was sufficient. (Hagedom v. Reid, 3 Camp. C. 377-9; Miller v. Hackley, 5 Johns. 384.)

II. The court below erred in giving the first instruction asked by plaintiff, because the answer denied generally that anything was owing to plaintiff, and because the answer set up that defendant had accounted to plaintiff for everything. (Loler v. Cool, 37 Mo. 85; Mo. Coal Oil Co. v. Hann. and St. Jo. R.R. Co. 35 Mo. 85; Dassler v. Wisley, 32 Mo. 498.)

III. The court below erred in giving plaintiff's second instruction, and refusing the one asked by defendant, because it misled the jury in enabling them to determine as to what amounted to an “assent” to the making of the shipments east.

IV. The last instruction given for plaintiff was erroneous: 1. Because there was evidence showing that, by the custom of commission merchants in the St. Louis market, there was an authority for making the shipments east; and, in giving this instruction, the court took away from the jury the consideration of this custom. It is well settled that this custom was sufficient as an authority for making these consignments east. (Story Ag. § 34, p. 31, 6th ed.; also, § 14.) 2. Defendant had advanced very largely on the consignments of the plaintiff, and this is shown by the pleadings and the evidence. He therefore had a special property in the flour, and he had a right to sell, in his discretion, in order to reimburse himself for his advances. (Brown v. McGran, 14 Pet. 480.) In the case now before the court there was no offer to make good the advances; no express instructions from plaintiff, as in the case just cited. (Warfield v. Douglas, affirming Brown v. McGran, 1 Sandf. S. C. 360.) These authorities clearly settle that a factor has a right (even when he has express instructions to the contrary) to sell in order to reimburse himself, and in so selling he must exercise a sound discretion.Knox & Smith, for respondent.

Defendant had no right to send the flour consigned to him to any foreign market for sale. (Story Ag. §§ 33-5.) Scott & Bros. could not delegate the power given to them to other agents. It is a personal trust. (Edw. on Bailm. 280-3.) By consigning the flour to Scott & Bros., at St. Louis, plaintiff designated the market where the flour was to be sold; and without his authority his agents could not sell the flour elsewhere without incurring a liability to account to plaintiff for the damages he might sustain by reason of such sale.

FAGG, Judge, delivered the opinion of the court.

The plaintiff's claim in this case was for the difference between the alleged value of five hundred barrels of flour in the St. Louis market and the sum for which it actually sold in the city of New York. The petition alleges that the flour in question was consigned to the appellant (defendant below), a factor residing in St. Louis, for the purpose of being sold in that market; that it was shipped without authority to the city of New York, and there sold; that the defendant had only accounted to plaintiff for the sum of thirteen hundred and twenty-two dollars and forty cents as the proceeds of said sale; that the flour at the time of shipment was worth in the St. Louis market seven dollars and fifty cents per barrel, making a total of thirty-seven hundred and fifty dollars, the difference for which he asked judgment, being the sum of twenty-four hundred and twenty-seven dollars and sixty cents.

The answer denies that there was any order or direction to sell in the St. Louis market, or any limitation by positive instructions in relation to the place of sale or the price. It is averred that, from time to time, previous to the shipment, plaintiff had consigned to defendant large quantities of flour--a portion of which, with the knowledge and consent of plaintiff, had been shipped to the eastern markets, and there sold for a profit; that a part of the lot of flour in question became sour before it could be sold, and was consequently disposed of at a much less rate than it would otherwise have brought; that defendant had made large advancements to plaintiff upon these different consignments, and claimed a small balance to be still due him according to an account rendered. It is further stated, by way of defense, that the defendant had good right to make the shipment complained of, “according to the well-known and established usage of merchants in St. Louis;” and concludes with the general averment that the flour was not worth the amount claimed, and that he had fully accounted to plaintiff for every barrel consigned to him, “at its true value, and for the entire proceeds thereof.” The plaintiff had judgment in the St. Louis Circuit Court for the sum of fourteen hundred and sixty dollars, and the defendant brings the case here by appeal.

Previous to the trial defendant had given notice to the plaintiff to produce certain letters addressed to him for the purpose of informing him of the disposition made of his flour. They were not produced according to the notice, and an offer was made to read copies from the defendant's letter-book. As a foundation for the introduction of this secondary evidence, the defendant was asked to state, in his examination, whether the originals were sent to the plaintiff, and he stated that they were. Upon cross-examination, this statement was qualified by the following answer as to his means of knowing the fact, viz.: “I generally carried them to the office; but I cannot say that they were put into the post-office, positively; I believe they were.” With sufficient proof of the fact that they had been deposited in the office and directed to the proper address of the plaintiff, the presumption that they had been received by due course of mail would have been sufficiently strong, perhaps, to have authorized the reading of the copies. But it is sufficient to say, in this case, that there was no positive and satisfactory proof of that fact, and therefore no error was committed in excluding them. They constituted only one link, so to speak, in a chain of circumstances tending to show plaintiff's acquiescence in what had been done by defendant in reference to the consignment. The defendant really had the benefit of the substance contained in the letters, as he was permitted to...