Thacher v. Moors

• Decision Date: 20 January 1883
• Citation: 134 Mass. 156
• Parties: Henry C. Thacher v. Joseph B. Moors
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

134 Mass. 156

Henry C. Thacher v. Joseph B. Moors

Supreme Court of Massachusetts

January 20, 1883

Argued March 9, 1880; November 9, 1881 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Suffolk. Tort for the conversion of 184 bags of wool. Writ dated January 12, 1878. Trial in this court, without a jury, at September term 1879, before Ames, J., who reported the case for the consideration of the full court, in substance as follows:

At the time of the transactions hereinafter stated, the plaintiff was a merchant, doing business in Boston under the name of H. C. Thacher and Company, and was engaged in buying, selling and receiving consignments of wool for sale on commission, and making advances upon said consignments; and the defendant was a banker, doing business in Boston under the name of J. B. Moors and Company.

One Isaac H. Jones, Jr., up to about November 15, 1877, when he absconded, carried on business in Boston, having his office in Federal Street. Upon the sign on his office door were the words "Wool Broker;" at the entrance of the building in which he had his office was painted the word "Wool;" upon some of his business cards he was styled "Wool Broker," upon others, "Wool Broker and Commission Merchant," and upon his bill-heads, "Wool Commission Merchant." It appeared that he did business in wool, partly as a broker, to a considerable extent on his own account, and sometimes as a commission merchant. He had two large lofts suitable for the storage and exhibition of wool, in which, in addition to his other business, he was accustomed to store wool as a warehouseman for other persons, and also wool belonging or consigned to himself. Jones had a price on, and offered for sale as a broker, all wools in his stores, but there was no evidence that the plaintiff knew this. Jones had large transactions with the plaintiff, both as a broker and on his own account. The defendant had known Jones for about four years and a half; had visited his office in Federal Street; had on one occasion stored wool with him as a warehouseman, and upon all the evidence must be assumed to have known his general course of business, and that he acted in the different capacities of broker and merchant and warehouseman.

Before July 1877, Jones applied to the plaintiff to take consignments of wool to be made to him by George B. Fessenden, of Wells River, Vermont. The plaintiff agreed to accept such consignments, and to advance about three fourths of their value. No agreement was made by the plaintiff with Jones at the time as to warehousing or selling said wool, or as to Jones's acting as a broker in the sale of the same.

On July 9, 1877, the first consignment was made. A railroad receipt and an invoice were enclosed in a letter to Jones, and were brought and delivered by him to the plaintiff, in whose possession they have since remained. The receipt was signed by the agent of a railroad company in New Hampshire, and stated that a certain number of sacks of wool were "received of G. B. Fessenden" and were "consigned to H. C. Thacher & Co., Boston." The invoice was headed, "Invoice of forty-five bags wool consigned to H. C. Thacher & Co. for sale for my account," and was signed "Geo. B. Fessenden." Upon the arrival of the wool in Boston, the plaintiff gave orders to the carrier to deliver it to a truckman who acted frequently for Jones, to be stored in Jones's lofts, and received from Jones the following receipt: "Boston, July 12, 1877. Received in store 102 Federal Street, for ac. H. C. Thacher & Co. 45 bags fleece wool, Fessenden Consgt. ac. 1. H. Jones, Jr." All the subsequent consignments were made in the same way, and similar receipts for all the consignments were given by Jones to the plaintiff. The plaintiff paid drafts upon him for three fourths of the value of the parcels of wool as consigned, and also paid freight to the carrier. The wool in controversy is part of said consignments. Some of the drafts on the plaintiff were payable to the order of Jones.

The wool was bought by Fessenden upon joint account with Jones, under an arrangement between them, by which Fessenden was to buy the wool of the farmers in Vermont, and Jones was to find the money (either furnishing it himself or procuring some one else to advance upon the wool) and have control of the sale of it in Boston, and the profits were to be divided between them. The plaintiff had no knowledge of this arrangement until after Jones absconded; and had no reason to suppose or suspect that Jones had any interest in the wool, or was a partner with Fessenden in the transaction. The plaintiff did not intentionally give up the control of the wool, or intend to part with his rights in delivering the same to Jones, as before stated. Jones advanced money in excess of that advanced money in excess of that advanced by the plaintiff.

The wool after being received in Jones's lofts was sorted, by an order of the plaintiff given to Jones, by cutting open each bag and separating the different kinds of fleeces, one from the others. The different kinds were then put into new and separate bags. This sorting is customary, and is necessary to put the wool into a condition to be exhibited to buyers. While the wool was lying open, it was seen by the plaintiff in Jones's lofts.

Jones had no authority from the plaintiff to sell said wool as a factor or consignee, but said wool was entrusted by the plaintiff to Jones as a warehouseman, for the purposes of sale, and with authority as broker to receive offers for and to negotiate sales of the same, to be reported to and settled by the plaintiff, in whose name the bills of sale were made, and who collected the price. Jones, as such broker, showed the wool to his customers, for the purpose of getting offers to purchase it; and, in two cases, reported to the plaintiff offers for two several lots, which were accepted by the plaintiff.

Jones then made a broker's memorandum or bought-and-sold note, which he rendered to the plaintiff. The plaintiff then ordered the wool weighed, and sent a bill of parcels, with a certificate of weights, to the buyer, from whom he received the price, or a negotiable security in payment thereof, without previous direct communication between himself and the buyer. Jones received a broker's commission on the sales, and also warehouse charges. Jones did not (before the transactions with the defendant) sell any of the wool in his own name, or receive the proceeds himself, as a consignee or factor usually does, and had no authority from the plaintiff to dispose of the wool as if he were a consignee or factor. Jones entered this wool in the books in which he kept account of wool stored by him as a warehouseman, including all wools consigned to him; and also entered it in a separate book under head of "Fessenden Joint Account." These were the only sales of this wool in which Jones took any part, and in both of these cases Jones consulted the plaintiff as to the price.

Jones, while said wool, with other wool belonging to the plaintiff and for which the plaintiff held his receipts, was in his lofts, applied to the defendant at various times for loans of money upon pledges of different parcels of wool, of which he produced a memorandum and of which he said he was the owner, which statements were afterwards incorporated into contracts of pledge made with the defendant. The defendant examined samples of the wool, and agreed to make Jones loans on it, upon his having the wool put in store in the lofts of George B. Drake & Co., wool commission merchants, whose store was next to that of Jones, and bringing him a warehouse receipt therefor in each instance. The warehouse receipts were signed by George B. Drake & Co. upon printed blanks furnished by the defendant. At different times, from July 27 to November 10, 1877, Jones pledged to the defendant the different parcels making up the wool in controversy. The defendant acted in good faith, but did not ask Jones to exhibit any bill of sale, or bill of lading, or invoice, or other document of title; nor did he examine Jones's books, or see any document of title, except the warehouse receipts of George B. Drake & Co. The defendant simply asked Jones if he owned the wool, and Jones replied that he did; and the defendant relied upon this assurance and upon Jones's possession.

Neither the plaintiff nor the defendant had seen or asked to see any of Jones's books until after he absconded. As soon as the defendant learned that Jones had absconded, he made demand under his contracts of pledge, sought a purchaser, negotiated a sale of all the wool held by him in pledge from Jones, including the wool in controversy, and on November 22, 1877, sold the same.

Before suit, and upon the day of the date of the writ, the plaintiff demanded of the defendant the wool in controversy, and the defendant refused to deliver the same.

Upon the foregoing facts, the judge ruled, as matter of law, as follows: 1. The plaintiff had a right to consider Fessenden the owner of the wool, and had, under the Gen. Sts. c. 54 § 1, a lien upon it for his advances. 2. The receipts which the plaintiff took from Jones, whether they are in the usual form of warehouse receipts or not, implied that Jones held the wool for the plaintiff, and that the latter had not lost his lien by delivering the wool to Jones, under the circumstances stated. 3. Under the Gen. Sts. c. 54, §§ 3, 4, Jones was neither a "person entrusted with "the disposal of the wool," and having authority to sell or consign the same," nor "a consignee or factor having possession of" the wool "with authority to sell the same," "or having possession of a bill of lading, permit, certificate or order for the delivery of" the wool "with...