Opinion
(December Term, 1860.)
Where the plaintiff, the defendant, and another, shipped produce on the same boat, consigned it to a factor, who sent the defendant a draft on New York for the whole amount, which he sold and, receiving the money for it, endorsed it in his own name, but the paper coming back to him dishonored, the defendant refunded the money, and was unable to get it from the factor, after using due and proper diligence, it was Held, that the defendant was in no wise liable for the loss of the debt.
CASE, tried before Saunders, J., at Fall Term, 1860, of CHATHAM.
Howze for plaintiffs.
Phillips for defendant.
The following statement, signed by counsel, was sent to this Court as the case tried below, viz.:
"The evidence was as follows: "William Bland, the plaintiffs' intestate, through the defendant, who acted without commissions, shipped from Haywood to Wilmington, in February, 1857, a lot of cotton worth $290. At the same time the defendant shipped, in the same way, produce for himself and for Elias Bryan. J. S. Banks was the consignee of this produce, and, by direction of the plaintiffs' intestate, the cotton also was forwarded to him. In March, 1857, Banks remitted to the defendant a draft on a house in New York for $750, which, having been sold for the money and endorsed by Scott to one Lambeth, was, on due presentment, dishonored and returned through Lambeth and Scott to Banks. By agreement between Banks, Lambeth, and the defendant a second draft given in substitution of the first was made payable directly to Lambeth. Upon this only $363.08 was received of the drawees, the draft having been duly dishonored for the rest. Lambeth, on having the second draft returned to him, carried it to Scott and demanded of him the difference between the $750, for which it called, and the $363.08 which he had received upon it. Scott paid it with (among other money) $290, which he produced in a roll from his pocket, saying, `This is Bland's money for his produce; I have already paid Elias Bryan more than his share.' It was shown that the draft for $750 was remitted, in part, for the purpose of paying off the debt to Bryan and that to Bland. It was also shown that the debt to Bryan (101) was $396.96, and that he received it of Scott on 20 March, 1857. The following is a copy of the second draft, which was produced by the defendant at the trial:
"WILMINGTON, N.C. 18 April, 1857.
"'$750. Ten days after date, acceptance waived, please pay to the order of A. T. Lambeth, Esquire, seven hundred and fifty dollars, for value received; which please charge to the account of your ob't serv't,
J. S. BANKS.
"`To Messrs. B. B. Blossom Son, New York.'
"Upon this were the following endorsements: `A. T. Lambeth.' `Money received on acp., $353.08, of the within debt.' `Pay the balance to the order of J. W. Scott — A. T. Lambeth.' Just after the second draft was returned Banks failed, and it did not appear that anything further was ever received by Scott for the cotton, except some salt and a safe. After Banks failed, upon Scott's being about to visit Wilmington, Bland desired him to try and save something for him. Whether this was done did not appear. It was shown that afterwards the defendant received of Banks the lot of salt and a safe above mentioned, a part of which he offered to Bland, who refused it. It appears, also, that Scott and Bryan each lost several hundred dollars by Banks. The plaintiffs showed a demand on Scott for the value of the cotton a short time before the suit was brought, and that the latter refused to pay, saying that as he had failed to receive the money from Banks it would be hard for him to have to pay it."
His Honor charged the jury that upon the evidence they should find a verdict for the plaintiff for $290, with interest from 1 April, 1857.
Verdict and judgment for plaintiffs. Appeal by defendant.
After digesting as well as we can the facts of this case, we are unable to perceive the ground on which the defendant was held liable for the value of Bland's produce. It seems that William Bland, the intestate of plaintiffs, the defendant Scott, and a person by the name of Bryan, sent produce down the Cape Fear River on the same boat. The defendant, in putting the freight on board at Haywood, the place of departure, acted as the agent of Bland. The produce was consigned, by the agreement of all concerned, to J. S. Banks, of Wilmington, as a factor, to dispose of it for the benefit of each consignor. The produce was transmitted in February, and in the month of March a draft on B. B. Blossom Son, of New York, was sent to Scott for the entire proceeds. This draft was discounted by A. T. Lambeth, at the instance of Scott, and on 20 March Bryan's proportion of it was paid to him by Scott, viz., $396.96. The draft was dishonored and returned, and an arrangement was then made by Banks with Scott and Lambeth to draw again for the amount of $750 on the same house in New York, in favor of Lambeth, which was accordingly done, and on this draft $353.08 was received by Lambeth. It seems that Scott then refunded to Lambeth the proceeds of the draft, less the $353.08 received on the same, saying, as he produced a part of the money, viz., $290, that it was Bland's money.
Thus it will be seen that of the common adventure in this enterprise Bryan has received the proceeds of his produce; Bland has not received anything, and Scott, the defendant, has not only not received anything but has suffered a loss over and above of $43.88, except he derived some indemnity from the salt and safe referred to in the evidence.
The case states that Scott acted as the agent of Bland in starting the produce to Banks, but after that it is not stated that he was to be responsible. Banks is the consignee and factor alike of all, and upon the delivery of the produce he became responsible to each. That is our conclusion on the state of the facts presented to us in the record.
The question then is, Did the defendant's interference in the matter, as a volunteer in respect to Bland and Bryan, without any interest in the transactions except to the extent of his part of the (103) proceeds of sale, make him responsible to the others? We think not.
If it be assumed that, having accepted a bill payable to himself for the whole proceeds and having attempted its collection, he has made himself liable for ordinary care and diligence, we think these have been exerted. It is clear the defendant is not at all liable for the delinquencies or want of fidelity in Banks. The latter was as much the factor of the plaintiffs as of the defendant, and the latter can only be subjected to the responsibility in case some act or omission on his part in relation to the fund sent him was contrary to the course of a man of ordinary prudence in the management of his own affairs. What, then, is his conduct in this respect? He takes the draft sent, embracing the sum due himself as well as the sums due Bryan and Bland. He procures it to be discounted, and is proceeding to distribute the proceeds when the draft is returned dishonored by the drawee. Another draft is then taken from Banks, and upon this is paid $353.08. It is dishonored as to the balance. Banks fails, and the defendant, being liable upon his endorsement, refunds the money in hand arising from the discount of the bill. By reference to the dates of these transactions it will be perceived that all this was done from about the middle of March to the middle of April.
It seems to us, after the false step of consigning to an untrustworthy factor, for which defendant is not responsible, due diligence was used in endeavoring to make available the fund sent, and defendant is not responsible for the failure.
Upon the state of facts reported, therefore, we differ from his Honor as to the personal responsibility of the defendant to make good the loss. What may be the rights of the parties, respectively, in the funds actually received we are not now called upon to say. There should be a
PER CURIAM. Venire de novo.
(104)