State ex rel. Parker v. Thompson
| Decision Date | 05 February 1894 |
| Citation | 25 S.W. 346,120 Mo. 12 |
| Parties | The State ex rel. Parker, Appellant, v. Thompson et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.
Reversed and remanded.
Seneca N. Taylor and Mills & Flitcraft for appellant.
(1) A factor is a person to whom goods are consigned for sale, by a merchant residing abroad, or at a distance from the place of sale, for compensation, or a commission. Winn v Hammond, 37 Ill. 103; Nagel v. McFeeters, 97 N.Y. 196; Baring v. Corrie, 2 B. & Ald. 143; Cotton v. Hiller, 52 Miss. 13; 3 Am. and Eng Encyclopedia of Law, 317; Ewell's Evans on Agency, [Ed. of 1879], p. 3; Story on Agency [8 Ed.], sec. 33. (2) The compensation of a factor is usually a commission, but his compensation may be a fixed salary without commissions. Lawrence v. Bank, 6 Conn. 527; Winn v. Hammond, 37 Ill. 103; Nagel v. McFeeters, 97 N.Y. 196; Perkins v. State, 50 Ala. 156; Blood v. Palmer, 11 Me. 414; Anderson's Dictionary of Law [Ed. 1889]; The Century Dictionary; Jacobs' Law Dictionary; Wharton on Agency and Agents [1 Ed.], sec. 735. (3) It is not at all essential that a factor should be entitled to a commission. He is none the less a factor, though paid a fixed salary only, instead of a commission. See cases cited above. (4) It is entirely consistent with the relation of factor that he should bestow labor upon the goods before they are ready for sale. This may be carried to the degree of entirely changing them, as in the making of milk into butter and cheese, or the like, without destroying his relation of factor to the goods. Bank v. Schween, 127 Ill. 573; Shaw v. Ferguson, 78 Ind. 554. (5) A factor has a general lien upon every portion of the goods of his principal in his possession, and upon the price of such as are lawfully sold by him for the general balance of the account between him and his principal. Howard v. Smith, 56 Mo. 314; Lewis v. Mason, 94 Mo. 556; Young v. Thurber, 91 N.Y. 390; Edwards on Bailments [3 Ed.] (1893), secs. 365-368. (6) A factor who has accepted drafts on the faith of goods consigned to him, is making an advance on the goods within the meaning of the law, and has for the amount the same lien or privilege as though the money had been paid by him. Story on Agency, secs. 376, 378; Mechem on Agency, sec. 1032; Ewell's Evans on Agency [Ed. 1879], p. 530, star p. 401; 13 Am. and Eng. Encyclopedia of Law, p. 586; Vail v. Durant, 7 Allen, 408; Eaton v. Truesdale, 52 Ill. 307; Haiden v. Waldo, 55 N.Y. 297; Lambeth v. Turnbull, 5 Rob. (La.) 264; United States v. Villalonga, 23 Wall. 41; Stevens v. Robbins, 12 Mass. 182. (7) When the lien of a factor has once attached it can, like other liens, only be lost or destroyed by some act of the factor. It is superior to the claims of subsequent purchasers, and can not be defeated by levy of an attachment or execution against the property or summoning a factor in garnishment. Lewis v. Mason, 94 Mo. 556; Mechem on Agency, sec. 1037; 3 Am. and Eng. Encyclopedia of Law, 337; Burnett v. Ward, 82 Ala. 557; Bank v. West, 46 Me. 15; Bank v. Stewart, 3 B. Monroe (Ky.), 73; Buler v. Pondire, 55 N.Y. 325; Eaton v. Truesdale, 52 Ill. 307. (8) The lien of the factor is but a special interest, and does not amount to a general ownership of the goods, even if he has made advances equal to or exceeding their value. The principal does not lose his ownership by committing the custody of the goods to the factor, and receiving advances upon them. He may, at any time, before the factor has sold the goods, reclaim them upon paying the advances made, with interest and expenses, and relieving the factor from liability on acceptances. Lewis v. Mason, 94 Mo. 556; Mechem on Agency, sec. 1034; United States v. Villalonga, 23 Wall. 41; Holly v. Huggeford, 8 Pick. 76; Jones v. St. Clair, 2 N.H. 219. (9) A factor has such a special interest, however, in the goods, that he can maintain trespass or trover against one who injures them or deprives him of their possession. As against a mere stranger he can recover the full value of the goods. Mechem on Agency, sec. 1041, also, 765; Robinson v. Webb, 2 Bush (Ky.), 46; Byer v. Bush, 50 Ala. 19; Little v. Fassett, 34 Me. 545; Winn v. Hammond, 37 Ill. 104; Fitzhugh v. Wyman, 9 N.Y. 559. (10) Parker after making his claim had a right of action on the indemnity bond. Bradley v. Holloway, 28 Mo. 150; Railroad v. Castello, 30 Mo. 124; State ex rel. v. Watson, 30 Mo. 122. And this is so, even if the claim which Parker made was defective. State ex rel. v. Doane, 39 Mo. 50.
W. B. Thompson and G. M. Mackellar for respondents.
(1) The contract read in evidence between the Anchor Manufacturing Company and Parker does not create Parker a factor authorizing him to pledge, hypothecate and dispose of the property under the well known rule of law applicable to commission merchants or factors; that rule of law is defined clearly to be where merchandise is consigned to a commission merchant to be held and disposed of on account of the consignor without specific directions as to sales thereof, and the commission merchant incurs expense and makes advances on account of such consignment for the benefit of the consignor, the legal presumption is that the consignee has the right to sell according to the ordinary usages of trade and reimburse himself for such expense and advances. Denny v. Rhodes, 18 Mo. 147; Phillips v. Schott, 43 Mo. 92; Brown v. McCaw, 14 Pet. 479; Marfield v. Douglass, 1 Sandford, 360; Block v. Boiceau, 1 Sandford, 78; Gihon v. Stanton, 5 Selden, 476; Blackman v. Thomas, 28 N.Y. 67; Field v. Farrington, 10 Wall. 141; Howard v. Smith, 56 Mo. 314. (2) The contract is of a different nature; it creates the relation of principal and agent and not that of consignor and commission merchant. First. It creates Parker an employee. Second. It prohibits him from forming a partnership with anyone else. Third. It limits his salary. Fourth. It specifically provides that the property shall belong to the Anchor Manufacturing Company and shall not be disposed of by Parker, except in pursuance of his agency. Fifth. It provides that the Anchor Manufacturing Company shall pay all the expenses of operating the agency. (3) The court will read and interpret the contract according to what it says, and unless it creates a factor's lien by its own force and effect, it will not enlarge its meaning as contended for by appellant. It is submitted, therefore, that the court below did not err in the construction of the meaning of the contract, and the judgment should be affirmed.
Daniel B. Sickles commenced a suit of attachment in the circuit court of the city of St. Louis against the Anchor Manufacturing Company, in March, 1890. The sheriff levied the writ upon a small steam boiler, a stave cutting machine and some other machinery and office furniture and also upon some $ 5,000 worth of barrels and barrel material, all of which was then in the possession of James H. Parker, the plaintiff in this action. Parker served upon the sheriff a written notice of a claim to the property, stating the claim to be that of a factor. Thereupon the plaintiff in the attachment suit gave bond under the provisions of the act of the third of March, 1855, concerning the duties of sheriff and marshal in the county of St. Louis, and the sheriff sold the property. Parker then brought this suit against the principal and sureties in the bond. The trial court sustained a demurrer to the plaintiff's evidence, and the plaintiff took a nonsuit with leave, etc.
As the plaintiff's right to recover depends upon the question whether he has a factor's lien upon the property or any of it, and that question depends, to a considerable extent, upon the contract between the plaintiff and the Anchor Manufacturing Company, the defendant in the attachment suit, we set out the contract in full:
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