Opinion
(January Term, 1814.)
1. If one purchase goods from a factor and pay him for them before he is forbidden by the owner, the payment is valid.
2. A sale by a factor creates a contract between the owner and the purchaser, and the latter may pay the owner against the orders of the factor. Hence, where the plaintiff, a captain of a vessel which was stranded, employed the defendants to sell the cargo saved, as auctioneers, which they did, and paid the amount to the owners of the goods, except the freight pro rata due the captain, such payment was held good.
IN this case the plaintiff was master and owner of a vessel called the Ailcy Ann, stranded on the island of Baldhead, in a voyage from Philadelphia to Charleston. The cargo was sold by the order and under the direction of the plaintiff, by the defendants, auctioneers. This action was brought to recover the amount of the account of sales. The defendants have paid over to the agent of the owners of the goods the amount of sales, except the amount of the verdict, which is admitted to be due, and ready to be paid, for freight pro rata, which amount was regularly ascertained by a broker in Philadelphia, who had Golden's account, as will appear by the deposition annexed of Donaldson, the broker. The plaintiff claims the amount of sales, and the question is whether the defendants were justified in paying the money over to the agent of the owners, in opposition to the wishes and orders of plaintiff, and thus decide the question of freight between the plaintiff and owners in this action. A verdict was given for the amount admitted to be due, which is precisely the sum given on a former trial of the cause in this (142) Court.
It is a well established rule of law that a sale by a factor creates a contract between the owner and the purchaser. If, however, the purchaser pay the factor for the goods so sold, such payment will protect the purchaser from the demand of the owner, unless the latter had forbidden the former to pay the factor.
But where the purchase pays the owner, in opposition to the wishes and against the order of the factor, such payment will be good, because the owner, being, through the agency of the factor, a party to the contract, and being, moreover, the beneficial proprietor of the goods sold, has an unquestionable right to receive payment directly from the purchaser.
The defendants in this case being public auctioneers does not vary the principle on which it depends. Their employment to sell the goods proceeded, in fact, from the owners, whose agent for that purpose the plaintiff certainly was. And had they refused to account with and pay over to the owners the amount of sales, the latter might have recovered such amount, deducting what might be due the plaintiff for freight.
It is conceded that the plaintiff had a lien on the goods delivered by him, as agent for the owners, to the defendants, to the amount of the freight due him from the owners, but this lien on a part cannot entitle him to the possession of the whole amount of sales, against the will of the absolute proprietors.
The defendants, having received the goods from the plaintiff as the agent of the owners, and having, in the ordinary course of business, disposed of them, are called on by the plaintiff to account for the sales. They say, "We have paid to the owners of the goods the amount of sales, reserving for you the amount due you for freight, which we are ready to pay you." This, in justice, is all the plaintiff can ask, and as this is secured to him by the verdict of the jury, we are of opinion it should stand. (143)
Rule for new trial discharged.
Cited: Symington v. McLin, 18 N.C. 299; Brown v. Morris, 83 N.C. 255.