Suman v. Inman

Citation6 Mo.App. 384
PartiesJOHN V. SUMAN, Defendant in Error, v. BRUCE INMAN ET AL., Plaintiffs in Error.
Decision Date31 December 1878
CourtCourt of Appeal of Missouri (US)

1. The promise of a factor who, having possession of the goods, sells under a del credere commission, agreeing to guarantee the sales, rests upon the consideration of his duty and responsibility growing out of his employment, and is not within the Statute of Frauds.

2. A letter written three months after the transaction in issue is not competent, and cannot be introduced by the party by whom it was written, as part of the res gestæ.

3. An erroneous instruction given for respondent which could in no wise prejudice appellant, but whose only effect is to impose upon respondent burdens not required of him, is not a ground for a reversal.

ERROR to St. Louis Circuit Court.

Affirmed.

G. M. STEWART, for plaintiffs in error: A verbal undertaking by a broker selling on commission to guarantee all sales is a collateral undertaking, and within the Statute of Frauds.-- Canmann v. Brunswick, 3 Mo. App. 586.

T. G. C. DAVIS, for defendant in error.

BAKEWELL, J., delivered the opinion of the court.

The second count of plaintiff's petition alleges that defendants were factors and commission-merchants; that plaintiff shipped to them a car-load of goods worth $474, which defendants received and agreed to sell for a commission of five per cent, and guarantee the payment of the proceeds to the plaintiff; that defendants sold the goods to Fox & Co., which firm was then, and ever since has been, insolvent; that plaintiff has received no part of the proceeds of the sale, though demand was made of defendants. Judgment is asked for $474 and interest. There was a general denial, and a counter-claim for commissions. The first count of the petition was abandoned at the trial. There was a verdict and judgment for plaintiff, and the cause comes here by writ of error.

The testimony was contradictory. There was, however, some evidence that the goods were sold on a del credere commission. There was also testimony tending to prove the other material facts alleged in the second count of the petition.

1. An instruction in the nature of a demurrer to the evidence was asked by defendants and refused; and it is claimed that, as the contract was not in writing, there was no evidence to support the verdict.

It was formerly said by learned writers that the contract of a factor binding him in the terms implied in a del credere commission was a collateral obligation and within the statute. Chitty on Con. (10th ed.) 209. And it was held in Morris v. Cleashey, 1 Mee. & W. 556, that the obligation is collateral. But the later cases do not so hold. To quote the language of Judge Curran in Wolff v. Koppel, 5 Hill, 458: “It may not be strictly correct to call the contract of a factor a guaranty, in the ordinary sense of the word. The implied promise of the factor is merely that he will sell to persons in good credit at the time; and in order to charge him, negligence must be shown. He takes an additional commission, however, and adds to his obligation that he will make no sales unless to persons absolutely solvent; in legal effect, that he will be liable for the loss that his conduct may bring upon plaintiff without the onus of proving negligence. The merchant holds the goods, and will not part with them to the factor without this extraordinary stipulation, and a commission is paid to him for entering into it. What is this, after all, but another form of selling the goods? Its consequences are the same in substance. Instead of paying cash, the factor prefers to contract a debt or duty which obliges him to see the money paid. The debt or duty is his own, and arises from an adequate consideration. Upon non-payment by the vendee, the debt falls absolutely upon the factor. * * * The action is, in effect, to recover the factor's own debt.” This ruling was followed in England, in Couturier v. Hastie, 8 Exch. 55, where Parke, B., speaks of the judgment in Wolff v. Koppel as a very able one, and adopts the reasoning of the case.

The rule that in the case of factors who have possession of the goods, and sell under a del credere commission, the agreement is not collateral, and therefore not within the statute, is now too well established to be disturbed. 1 Am. Ld. Cas. 659-663; Bradley v. Richardson, 23 Vt. 720; Swan v. Nesmith, 7 Pick. 222; 2 Denio, 228; Story on Ag., sect. 215. The factor's promise stands upon the consideration of his own duty and responsibility growing out of his employment. If it terminates in a...

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3 cases
  • State on Information of Dalton v. Miles Laboratories, 42152
    • United States
    • United States State Supreme Court of Missouri
    • October 10, 1955
    ...25 S.W. 346, 348] and that the factors' guaranty of payment for Miles products sold through them did not affect that relationship [Suman v. Inman, 6 Mo.App. 384], our commissioner properly concluded that the evidence as to the other respondents, limited as it was to proof of execution of th......
  • Schenck v. Stumpf
    • United States
    • Court of Appeal of Missouri (US)
    • December 31, 1878
  • Suman v. Inman
    • United States
    • Court of Appeal of Missouri (US)
    • December 31, 1878
    ...6 Mo.App. 384 JOHN V. SUMAN, Defendant in Error, v. BRUCE INMAN ET AL., Plaintiffs in Error. Court of Appeals of Missouri, St. Louis.December 31, 1. The promise of a factor who, having possession of the goods, sells under a del credere commission, agreeing to guarantee the sales, rests upon......

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