Opinion
October Term, 1852
W.C. Noves for appellant.
D. Lord for respondent.
The jury were properly instructed as to the waiver of the defendants' lien for their charges for insurance, freight, cartage, labor, storage and fire insurance, that if on being apprized of the plaintiff's claim they put themselves not upon their lien but only upon the denial of the plaintiff's right, they could now assume a different ground ( Holbrook v. Wight, 24 Wend. 169).
The jury were likewise instructed that if the cotton in question was consigned to defendants as Hunter's factors, with advice of a draft and directions to insure and not with intent of transferring to them the property in the cotton, or on any agreement to consign the same to them in payment of or security for any previous debt owing by Hunter to the defendants, then that the cotton remained subject to Hunter's disposal until it should come to the actual possession of the defendants, unless they should have actually accepted the consignment according to the terms of Hunter's letter of consignment.
Patten v. Thompson (5 M. S. 350) shows that though the factor is under acceptance on general account for a consignor and has the bill of lading, yet that until the actual receipt of the property, the vendor to the consignor may stop them in transitu. It was so held upon the ground that there was neither a pledge by way of security for advances made nor an assignment of the bill of lading except for the purpose of enabling the factor to receive the property and carry it to the account of his principal and without any reference to a loan or balance due the factor. Lord Ellenborough refers to Kinloch v. Craig (3 T.R. 119), as going upon the same ground, although in that case the bill of lading was unendorsed, and as to that circumstance he says: "with respect to the endorsement of the bill of lading, if it be made to the party merely as factor, I conceive it carries his rights no farther, being made for the benefit of the principal, The same doctrine is recognized in Grosvenor v. Phillips (2 Hill, 147). None of the cases hold or at all countenance the doctrine that a factor or consignee can acquire a lien for his general balance before he gets possession of the property, unless it be in pursuance of the agreement of the parties, express or implied from their acts and course of dealing. In this case the question whether such an agreement existed, depending upon both the letters and the course of business of the parties as they appeared in evidence, was submitted to the jury, who have found that no such agreement existed. The judgment should therefore be affirmed.
Judgment affirmed.