Opinion
Argued December 21, 1875
Decided January 18, 1876
Simeon E. Church for the appellants.
William W. Goodrich for the respondent.
By the agreement between the plaintiff and Oemler, the plaintiff agreed to make advances on Oemler's growing crops, which were to be, and actually were, shipped to the plaintiff at Savannah and by him were to be and were consigned to the defendants in New York and to other parties at other places. The plaintiff advanced $2,000 on account of said agreement and received the crops accordingly. He thereby became possessed of the crops and entitled to the proceeds upon a sale thereof. The crops were shipped with bills of lading in the plaintiff's name, and letters were written from time to time in which the defendants were directed to sell on the plaintiff's, "my account." Upon these facts, if the case stopped here, it is quite obvious that the defendants were liable for the balance due on account of the crops consigned to them. The offer of the defendants upon the trial to prove an agreement of the previous year between Oemler and the defendants, by which the latter were to advance money for the crops, which was to continue in force until a final settlement was had and all advances paid, and that advances were made down to January, 1869, if admitted, would not, I think, alter or affect the plaintiff's rights or change the aspect of the case. Although this agreement was prior to that under which the plaintiff claimed, yet it was without the plaintiff's knowledge or notice to him; and as the plaintiff had full possession and control of the crops, he was entitled to be paid for the advances made out of the amounts realized upon any sale thereof. The crops were shipped by plaintiff on his own account, as already stated, and no secret lien could be created to the detriment of plaintiff's lien. The defendants' claim was for an old account, and he lost nothing therefor by the agreement of Oemler with the plaintiff. Nor was there any ground for claiming that the defendants had a right to the crops under an older title, for they were not sold and delivered to the defendants at all, but shipped for and on behalf of the plaintiff, and with notice to the defendant to that effect. The notice received from Oemler of the shipment, the marking of the boxes and barrels with his name and the returns made, that they were sold on the account of Oemler, do not change the general characteristics of the transaction, as shown by the contract, the bills of lading, and the directions accompanying the same, as well as by other acts of the parties. It is claimed that the letter of the defendants to the plaintiff, dated the twentieth day of April, was a notice of defendant's claim. This letter was in answer to a letter received from the plaintiff complaining of delay, and states that they are perfectly willing that the plaintiff should change his consignments, provided he pays the amount the defendants had advanced to Oemler. Giving to this communication the full force it was entitled to, the answer of April twenty-fourth, in which the plaintiff states that as the shipments were made by him in his name, he supposed that the defendants could have no doubt who was entitled to receive the returns, and further stated that he sent other articles which the defendants were requested to sell on the plaintiff's account, is a direct notification to the defendants that the sales were made for the plaintiff. And as the defendants continued to sell afterward on plaintiff's account and the crops forwarded in the plaintiff's name with bills of lading, they are estopped now from claiming that such sales were made upon any other account. No other point is made as to the contract which demands especial consideration, and as the case stood, there was no legal right to the avails of the same in the defendants, and no equities which entitled them to the moneys realized under an express contract with the plaintiff, and with full knowledge by and notice to the defendants that the crops were shipped by and on the plaintiff's behalf.
The point taken that there was no proof that there was any thing due to the plaintiff, was not made upon the trial, and is not well founded. Sufficient evidence appears to show that shipments were made to the defendants, to a considerable extent, and the case appears to have been tried upon the theory that the balance for which the verdict was directed was actually due unless the defendants were entitled to deduct the amount of their claim for advances under the contract with Oemler, of the previous year. Under these circumstances the defendants are concluded from raising any question as to the amount due. The right of the plaintiff to recover does not rest entirely upon his claim as consignor, but as the possessor of property upon which he had made advances. There was no error in any of the rulings upon the trial, and the judgment must be affirmed, with costs.
All concur.
Judgment affirmed.