Sigerson v. Pomeroy

• Decision Date: 31 October 1850
• Citation: 13 Mo. 620
• Court: Missouri Supreme Court
• Parties: JOHN SIGERSON v. POMEROY & ANDREWS

13 Mo. 620

JOHN SIGERSON

v.POMEROY & ANDREWS

Supreme Court of Missouri.

October Term, 1850.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

This was an action of assumpsit by the appellees against the appellant. Common counts for money had and received, and for money paid, laid out and expended. Plea the general issue provided by Statute of 1847. At the trial the case appeared to be, that the plaintiffs were commission and forwarding merchants in the city of St. Louis, and had advertised that they would ship goods to New Orleans, Liverpool and other places; that the defendant, in 1848, at different times from the 1st to the 18th of April, delivered to the plaintiffs, lard, pork and bacon, worth over $8,000, to be shipped and sold, a portion thereof, in New Orleans, and 386 barrels of lard in Liverpool, upon the whole the plaintiffs advanced to the defendant over $7,000, $4,000 of which was advanced upon the lard destined for Liverpool, and 24 barrels of other lard. That destined for Liverpool, was worth, in St. Louis, $4,995 63. (The plaintiffs also received of the defendant in money and other goods about $1,300.)

The plaintiffs shipped the goods to the commercial house of Andrews & Brother in New Orleans, which house was then in good credit. About the time of the shipments, both the members of the house of Andrews & Brother committed suicide, and that the administration of their estates was not yet closed, but the estates were generally regarded as insolvent.

The lard directed to be shipped to Liverpool was so directed in writing in these words: “Messrs. Pomeroy & Andrews, Gents. I herewith hand you dray tickets and invoice for 410 barrels of lard, 386 of which is a prime article and in fine order, and which I wish sent forward direct from New Orleans to Liverpool, provided your correspondents are in a situation to do that kind of business and have correspondents that they are satisfied will protect their and our interest.” This direction was in the form of a letter, and signed by the defendant.

The plaintiffs on the same day wrote to Andrews & Brother inclosing a copy of the defendant's instructions and a bill of lading of the lard, and stating that if they could negotiate they would have to advance about $4,000 on that shipment, and also stating that if it could be shipped to Liverpool and drawn upon by Andrews & Brother, so as to make their (the plaintiffs) advance good with all charges for receiving and forwarding they had better send it through as the defendant was very anxious to have it sent to Liverpool. Andrews & Brother wrote to the plaintiffs in reply that they offered the lard to all those to whose houses in Liverpool they would ship, and they would not any of them advance over three cents per pound (which rate by other testimony would have amounted to about $2,550 95), Andrews & Brother then sold the lard in New Orleans. The defendant gave evidence tending to prove that if the lard had been shipped to Liverpool he would have made a large profit thereon. There was no evidence of what was done with the other goods shipped to Andrews & Bro.

It was proved that there was an arrangement between the plaintiffs and Andrews & Brother, that on all consignments made by the plaintiffs to Andrews & Brother, the plaintiffs should receive a portion of the commissions made by Andrews & Brother on such consignments--(one witness, the plaintiffs' bookkeeper, stating the plaintiff's portion to be one per cent., the whole commission of Andrews & Brother being two and a half per cent., and another witness stating his belief that the portion of the plaintiffs was one half of the whole commission received by Andrews & Brother), and this was the plaintiffs' only compensation for their services, they making no other charge in St. Louis for shipping, advancing, &c. It was a part of the arrangement that the plaintiffs might draw upon Andrews & Brother for advancements made upon consignments to them. It was proved to be usual to charge a commission for shipping and advancing distinct from that charged for receiving and selling at the port of destination.

It was proved that the plaintiffs raised all the money which they advanced to the defendant by negotiating bills which they drew on Andrews & Brother against the shipments of defendant's goods. And it was not proved that the plaintiffs had paid any of those bills or were liable to pay them further than that a banker held some bills drawn by the plaintiffs on Andrews & Brother, and looked to the plaintiffs for payment of them, but these bills were not described by numbers, dates, amounts, or in any other way. It was not proved that Andrews & Brother had not paid any of the bills drawn against Sigerson's goods. Nor was it proved that by reason of the alleged insolvency of Andrews & Brother, the goods or their proceeds had been lost to the plaintiffs.

It was also proved that the plaintiffs, acting for Andrews & Brother had agreed with the defendant to buy of him a quantity of pork for Andrews & Brother, and had paid him, on account thereof, $3,500, and received of him 275 barrels of pork, valued at $1,848 69, and claimed of the defendant a balance on that account of $1,651 31, and this balance was included in the verdict rendered for the plaintiffs, as appears by the amount thereof.

There was some inconclusive evidence given of the custom of commission merchants as to their liability for the solveney of their consignees.

The court then, upon motion of the plaintiffs, instructed the jury as follows:

1st. That by the general law of the land, commission and forwarding merchants, like other agents, are required to follow the directions of their principals, to act with good faith, and with ordinary care, skill and diligence in regard to the business committed to them by their principals, and if, notwithstanding a compliance with these duties losses occur in such business, such losses must be borne by the principal, and the commission or forwarding merchant is not responsible.

2nd. If the jury find in the present case that the plaintiffs, in carrying out the orders of the defendant, sent forward the defendant's produce to the house of Andrews & Brother, in the usual course of business; that the last mentioned house was then in good credit, and the plaintiffs had no reason to doubt its solvency, and afterwards the proceeds of such produce were lost through a violation of defendant's orders on part of Andrews & Brother, or by reason of their insolvency; then the plaintiff's are not responsible to the defendant for such loss and are entitled to recover of him in the present action the amount of their advances on such produce.

3rd. The jury is further instructed that there is no evidence before them tending to show any local usage or custom at St. Louis in regard to the duties or responsibilities of commission and forwarding merchants different from the general law, the jury will therefore entirely disregard the evidence of witnesses as to their opinion of such duties and rosponsibilities, and decide this cause according to the general law as explained by the court.

4th. The jury are further instructed, that the circumstance of the plaintiffs having made an arrangement with the house of Andrews & Brother, by which the plaintiffs were to receive one per cent. on the amount of sales of such produce as might be consigned by the plaintiffs to Andrews & Brother, does not make the plaintiff a partner in the house of Andews & Brother.” To which the defendant excepted.

The court, upon motion of the defendant, instructed the jury as follows:

1st. If the jury believe from the testimony that Pomeroy & Andrews failed to comply with the instructions of Sigerson as to the dispesition of the goods delivered to them for shipment and sale, or part of said goods; and if a loss happened in consequence of such failure, then Pomeroy & Andrews are liable to Sigerson for such loss, and cannot recover the amount of their advances on such goods until they have paid to Sigerson the amount of such losses.

2nd. The jury is instructed that if Pomeroy & Andrews made advances to John Sigerson upon property put into their hands for shipment and sale, although both the property and Sigerson are liable to them to repay their advances, still Sigerson is only liable after the fund which was raised, or might have been raised by proper diligence of Pomeroy & Andrews out of the property shall have been exhausted; and if Pomeroy & Andrews have failed to use due diligence in the shipment and sale of said property they cannot recover advances made upon it from John Sigerson.

The defendant also moved the court to give to the jury the following instructions, which the court refused to give, to which refusal the defendant excepted.

1st. The jury is instructed that if Pomeroy & Andrews and Andrews & Brother were jointly concerned in the shipment and sale of property put into the hands of Pomeroy & Andrews, by John Sigerson, or were jointly interested in the profits of such shipment and sale, then the insolvency of Andrews & Brother, after they had received the property, does not give to Pomeroy & Andrews a right to recover of John Sigerson the advances which they made to said Sigerson upon said property, but if a loss occurred in consequence of such insolvency, then John Sigerson may recover of Pomeroy & Andrews the sum which would have been the net proceeds of said property if Sigerson's instructions in reference to it had been obeyed. 2nd. If Pomeroy & Andrews made advances to John Sigerson on account of property delivered to be forwarded for a market, and the money advanced was raised upon bills drawn by P. & A. against said property, they have no right to recover against Sigerson for said advances, without showing to the jury that they have paid, or are liable to pay, those bills. 3rd. If Pomeroy & Andrews made advances of money to John Sigerson on account of the property mentioned in the testimony, and they raised the money for the...