Opinion
05-29-1900
ELWELL v. COON et al.
E. S. Fogg, for complainant Mr. Borton and S. H. Gray, for defendants.
Bill in equity filed by John S. Elwell, as assignee of one Wallace, against Coon Bros. & Co. and others. Decree for plaintiff.
E. S. Fogg, for complainant Mr. Borton and S. H. Gray, for defendants.
STEVENS, V. C.This cause comes on for hearing upon bill and answer. From the pleadings it appears that on August 22, 1895, one Wallace, a packer and canner of vegetables at Woodstown, in Salem county, entered into a written agreement with Coon Bros. & Co., merchants in Philadelphia, whereby Wallace, in consideration of five dollars and of divers other good and valuable considerations, agreed to place in the hands of Coon Bros. & Co., for sale, the entire pack and output of his canning operations during the season of 1895, upon the terms and conditions therein mentioned. Wallace delivered a part of his output as agreed, but becoming insolvent, on February 20, 1896, made an assignment of his property to complainant, in conformity with the terms of the act to secure to creditors an equal division of the estates of debtors. By this assignment there came into the hands of the complainant assignee a stock of eanned tomatoes, of the appraised value of $12,152. The question is whether Coon Bros. & Co. had any property therein, or lien thereon for advances. The claim of the answer is that by the agreement Wallace and Coon Bros. & Co. became joint owners. I cannot find in any of its terms the least indication of joint ownership. The relationship created by it was manifestly that of principal and agent. Have, then, Coon Bros. & Co. any lien as such agents? By the agreement itself, the lien given was upon the proceeds of sale. The third clause provides that "the said Coon Bros. & Co. are to guaranty all sales, and to remit proceeds promptly when due, less five per cent. commissions, freight, drayage, warehouse charges, should any such charges accrue, and such advances as they may have made to the said John Wallace on said goods, with interest," etc. No other lien is given in express terms. If the defendant has any other, it must arise by operation of law. Factors have a lien founded upon actual or constructive possession. Story, Ag. § 361. Here there was, with respect to the goods which came into the hands of the assignee, neither actual nor constructive possession. It is expressly charged in the bill that the goods were in the packing house of Wallace at the time the deed of assignment was executed and delivered, and "that they are now in the possession of your orator, as part of the assets of said assigned estate"; and the only averment of the answer is that while defendants "admit that the possession of said goods was in said Wallace, and the legal title thereto was in him, yet that these defendants had such an equitable title and interest in said goods as enabled them, as against said Wallace, to assert in a court of equity their rights to a joint ownership with him under the terms of said agreement," etc. It is admitted, therefore, that the possession in fact was in Wallace, and the only claim made is that of a joint ownership, depending upon the terms of the agreement,—a claim which, I have said, is inadmissible.
It is argued that the court may treat the storehouse of Wallace as the storehouse of Coon Bros. & Co., but there is nothing in the facts alleged which would warrant the court in doing so.
It is further argued that inasmuch as the agreement provides that Wallace will place the entire pack and output of his canning operations during the season of 1895 in the hands of Coon Bros. & Co., the court ought to enforce this provision, and put that output into their hands, so far as it may be necessary to enable them to reimburse themselves. In other words, the court is asked to compel the assignee of the principal specifically to perform this agreement with his agents. This is equivalent to asserting that, assuming specific performance to be a proper remedy, the principal may not revoke the authority of the agent. That he may revoke, unless the authority be coupled with an interest, is clear. Story, Ag. § 466; Smart v. Sanders, 5 Man., G. & S. 895. But here, itseems plain, the authority is not coupled with an interest in the undelivered goods; for no interest is given by the agreement, except in the proceeds of the sale of such goods as Coon Bros. & Co. have actually sold.
It is said tnat the assignment is evidence of a lien. The answer avers that Wallace, in the inventory accompanying the assignment, described the goods as "stock of canned goods subject to the lien for advances, Coon Bros. & Co., $13,500," and that in the list of creditors he described the defendants as "Coon Bros. & Co., advances on canned goods secured by contract, $12,000." If the assignor was here merely endeavoring to state the fact as he conceived it, he stated it erroneously. If he was trying to do something more,—to create a preference by the very act of assignment—of course be failed. I think, therefore, it should be declared that Coon Bros. & Co. and their assignee have no property, lien, or preference in or upon the goods themselves, or in or upon money into which, by order of tha court they were converted.