#### *Harpers and Another v. Patton.

June, 1829.

Payment-* — Case at Bar —H. indebted to P. on forthcoming' bond, solicits him not to move for award of execution thereon, and to take flour for the debt; which P. refuses to do; but it is at last . agreed, that i*. shall send H.'s flour to his own commission merchant at Itichinond, to be by him sold there, and the net proceeds to be applied to H.'s credit on the bond: P. in March, sends the flour to L{., consigns it to his commission merchant, and directs him to sell it. and remit proceeds in May to himself at Baltimore, where he should then be; the merchant writes to P. that he has received and sold the flour, and will remit proceeds to him at B. according to his directions; but before time appointed for remitment, the merchant fails, and the money, without any fault of P. Is wholly lost. Help, that H. must bear the loss.

Forthcoming Bonds — 'Validity.†—Fi. fa. against three, A. T. & H. Forthcoming bond taken, the condition whereof does not distinctly state to which of the three defendants the property taken In execution belonged, and omits to state that it was restored to the debtor; Hele, the bond is good.

Same — Judgment—Irregular in Form — Effect —J udgment on forthcoming Jiond, instead of awarding execution thereon, is, that plaintiff recover the debt against defendants. Held, irregular in form, yet well in substance.

Motion, in the county court of Rock-bridge, at March term 1822, b3' Patton against Andrew, Thomas and Hugh Harper and James Anderson, for an award of execution on a forfeited forthcoming bond, executed by them, upon the levy of a fieri facias, which had been sued out by Patton against the three Harpers. The defence set up, was, that Andrew Harper had, since the forfeiture of the bond, paid the debt.

The forthcoming bond was dated the 28th December 1819. The condition was, that whereas Patton had sued out a fieri facias against Andrew and Thomas Harper, and Hugh Harper their appearance bail, upon a judgment of the county court of Rock-bridge, amounting with interest’ *&c.*to £72. 14. 0. and directed to the sheriff of that county, and the sheriff, by virtue of the said writ, “had taken the following property, belonging to the said Andrew Harper &c. to satisf3r the same, to wit” [here the property was specified] “and the said Andrew and Thomas Harper &c. being desirous of keeping the same in their possession until the day of sale thereof, had tendered James Anderson, as '^security for the forthcoming and delivery of the property at the day and place of sale; now, if the above bound Andrew Harper, Thomas Harper, Hugh Harper and James Anderson, or either of them, should deliver the said property to the sheriff or either of his deputies at the court house of the county, on the 15th January next, then and there to be sold to satisfy the said Patton’s execution, then the obligation to be void &c.” y

As to the question, whether the debt had been paid, the case was thus: The forthcoming bond was forfeited, and a notice was given to the three Harpers and Anderson their surety, that a motion would be made for an award of execution upon it, at March term 1820. On receiving that notice, Andrew Harper went to Patton, and requested him not to proceed upon the notice, and to take a parcel of flour, which Harper then had at Lindsey’s mill in Rockbridge, in part satisfaction of the debt: but Patton refused to purchase the flour, or to decline proceeding with his motion. The request was urged again, and again rejected. But, at length, Patton was induced by Harper’s urgent solicitations, to forbear his motion on the notice; and agreed at Harper’s request, to send the flour to Richmond, with the understanding, that the net proceeds should be applied to his credit on the forthcoming bond, and that some indulgence should be given for the residue of the debt. Harper was told by Patton that he should send the flour to his commission merchant in Richmond, to which Harper made no objection. In pursuance of this arrangement, Pa.tton stayed his then intended proceeding on the forthcoming bond, (by which the debt was perfectly secured, the Harpers *112and their surety being all in good circumstances) ; and, shortly afterwards, he caused the flour to be boated to Richmond, and consigned it to his own commission merchant there, with directions to remit the proceeds to him at Baltimore (where he expected to be) about the 1st May 1820, by which time it was supposed the proceeds of the flour would be in the commission merchant’s hands. The commission merchant *wrote to Patton informing him that the flour had been received and sold, and that the proceeds should be remitted to him according to his directions. Soon after receiving this letter, Patton left Rockbridge for Baltimore, and on his way thither, learned that the commission merchant had failed. He immediately took measures to secure the money, but without success: it was intirely lost. Indeed, Patton lost by the failure of the commission merchant, a large sum, the proceeds of other flour he had consigned to him; and several other merchants of Lexington in Rockbridge (where Patton resides) sustained losses by this failure. At the time Patton consigned Harper’s flour to the commission merchant, he was in good credit. An attempt had been made to settle this controversy, by arbitration; and Harper had distinctly admitted before the arbitrators, that Patton had exerted all the diligence in his power, to carry the arrangement with Harper into effect, in causing the flour to be sold, and endeavouring to obtain the proceeds, and that if the flour had been sunk in the river on its way from Rockbridge to Richmond, it would have sunk his (Harper’s) flour; but he contended, that he knew nothing of the commission merchant, that he was not his agent, and that he ceased to be responsible, after the flour had reached its destination, and its value was ascertained. The net proceeds of the flour were not equal to the debt, but Harper had paid Patton the balance, before the motion on the forthcoming bond: so that the only question now was, whether or no, Harper was entitled to credit for the net proceeds of the flour? in other Ewords, which of the parties ought to bear the loss resulting from the failure of the commission merchant who sold it?

Upon this state of facts the county court held, that Harper was entitled to the credit claimed for the flour, and so the debt due on the forthcoming bond had been paid in full; and therefore overruled Patton’s motion fbr an award of execution upon it. Patton appealed to the circuit court, which reversed the judgment of the county court, and entered 'x'judgment for Patton against all the obligors in the bond: but this judgment, was, in its form not a mere award of execution on the forthcoming bond, but a judgment that Patton should recover of the obligors, the penalty of the bond, to be discharged by the debt mentioned in the condition, with interest and costs, subject to credit for the sums which had been paid in cash. And then they appealed to this court.

Johnson, for the appellants.

The bond on which the motion was made, being a statutory bond, if its terms do not conform with the provisions of the statute, the summary remedy by motion, given by the statute, cannot be sustained. This bond does not pursue the provisions of the statute, 1 Rev. Code, ch. 134, § 16. The recital in the condition, leaves it uncertain, whose property was taken in execution; it states, that the execution was levied on property belonging to A. Harper &c. and then, that A. and T. Harper &c. were desirous of keeping possession till the day of sale. The &c. is no where explained. Nor does the condition state, that upon the execution of the bond, the property which had been taken in execution, was returned .to the owner or owners: if it was not so returned, the bond never had any obligation, and it could not be forfeited.

The judgment of the circuit court, also, is irregular. It is an original judgment for the penalty of the bond, to be discharged by payment of the debt mentioned in the condition. But the bond itself had the force of a judgment, and the court should only have awarded execution upon it.

These objections are technical; and if they should prevail, they will not decide the point in controversy. I have little care for the fate of them. B'or,

I insist, that upon the plain justice of the case, the judgment of the circuit court was wrong, and that of the county court right. The net proceeds of the flour sent to Richmond, must be considered as so much paid by H. to P. in satisfaction of the debt pro tanto. While it was in transitu *from Rockbridge to Richmond, while it lay unsold in the hands of the commission merchant, while the proceeds of the sales remained uncollected by him, it may safely be admitted, the subject was Harper’s property, and. therefore, that the risk of loss was his also. But the moment the proceeds of sales were received by the commission merchant, the money belonged to Patton, simply, exclusively, absolutely. Harper had no right or power over it, in any way; it was not passed to his credit; it was irrecoverably gone from him. The absolute right to the money, the power to direct the disposition of it at pleasure, to give the commission merchant credit for it as long as he pleased, to direct the time when, the place to .which, the manner how, it should be remitted to him; all, in fine, that constituted property in the subject, was in Patton. And, in fact, he exercised complete ownership over it: he consigned the flour to the commission merchant, without any intimation that Harper had any interest in it; he directed that it should be sold, and that the proceeds should be remitted to himself, at Baltimore, at a comparatively distant day, giving credit to the commission merchant in the meantime for the amount. It was, actually passed to his credit, and mixed up with his other funds in the merchant’s hands. Harper had no right to demand the money, and no right of action to recover it of the commission merchant; nor any right to-adopt any legal means to save or secure it, if he had apprehended a loss. Patton alone could, or can now, maintain an action for it. Should the agent retrieve his affairs, Patton may yet, and Harper never can, recover it of him. The money was, *113therefore, from the moment it got into the hands of the commission merchant, and it is still, Patton’s money, paid him by Harper; and, if it shall be ultimately lost (which cannot as yet be certain), the loss must fall on the owner.

Leigh, for the appellee,

left to the court, without any remark, the objections taken to the form of the forthcoming *bond, and to the regularity of the judgment of the circuit court.

Upon the merits, the judgment of the circuit court was right. The transaction was of a singular character, and the case must be decided on its own peculiar circumstances. Patton had prosecuted his claim against Harper, to the last stage; the debt was perfectly secure; the means of recovery sure and speedy: his debtor had no reason to ask, and he no motive to give, indulgence at any risk w'hatever to himself: and it is hardly to be imagined, that the one intended to incur any risk, or that the other wished or expected him to do so. The whole object of both parties, was, to give the debtor time to convert his flour into money, with which to pay the debt, and to ensure to the creditor the certain application of the proceeds' to the debt. To accomplish these objects, Harper constituted Patton his agent, to send the flour to market, to have it sold, to receive the proceeds, and credit him for them; and as Patton was not expected to execute this agency in person, he proposed, and the other consented, that he should employ his own commission merchant as a sub-agent in the business. If Patton undertook this agency for Harper, in perfect good faith, and executed it with diligence, Harper, his principal, was bound to bear any loss that might happen, without his default. If he was honest in recommending the sub-agent, and faithful and industrious to save the proceeds of the property in the wreck of the sub-agent’s affairs, Harper must bear the loss occasioned by ' the sub-agent’s default ; for he was Harper’s own agent, employed by Patton, with his acquiescence and approbation. Both parties knew, that the proceeds of the flour must, in the nature of things, remain for some time, in the hands of the commission merchant: both, then, Harper as well as Patton, intended that he should be trusted with them. Admitting, then, as Harper most explicitly admitted, the integrity and diligence of Patton’s conduct, how can he be held to bear this unlooked for loss? It is said, that atter the money was received by the commission merchant, Harper "had no right to demand it of him, or to sue him for it; that there was no privity of contract between them; that Patton alone had, and he only even now has, a right to demand and sue for the money; therefore, it was and is his money; and therefore, this was a payment by Harper to Patton. But, if the flour was Harper’s property, the proceeds of it were his property too; and if the commission merchant was the agent of Harper, employed by Patton his other agent, to dispose of his property, it is .not perceived, why Harper might not, and may not, maintain an action for the proceeds of his flour, as so much money had and received by the commission merchant to his use.

Johnson, in reply. Upon the doctrine of the law' of agency, Patton made the pro- , ceeds of the flour his own, by giving the commission merchant credit for them, to answer his own purposes: for he authorised him to hold them from March till May, at which time he directed him to remit them to himself at Baltimore ; meanwhile, they were put to his credit, and mixed with his other funds in the commission merchant’s, hands. Paley on Agency, p. 45; Wren v. Kirton, 11 Ves. 377.

*

Payinant. — The principal case is distinguished in Exchange Bk. y. Oookman, 1 W. Va. 77, where it is said that it was decided upon its own circumstances and decided no principle of law. It is also cited in a dissenting opinion in the same case at page 80.

†

Forthcoming Bonds — Validity —The principal case is cited in Central Land Co. v. Calhoun, 16 W. Va. 368. See monographic *note,*on “Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107.

CARR, J.

I think the judgment of the' county court was right. I admit, that no sale of the flour by Harper to Patton, was intended or effected by this transaction: Patton agreed to take Harper’s flour, send it to Richmond, and have it turned into money : therefore, all fair risks on Ihe flour were to be incurred by Harper, while it remained his. If the agreement had been, that it should be sold on a credit, (which does not seem to have been the fact), Harper, I think, would have hazarded the solvency of the purchaser: but so soon as the flour was turned into money, and that money in the hands of the commission merchant, it became, I think, Patton’s money, and a payment by Harper of his debt. We are not told, that in sending the flour to the merchant, Patton gave him any information, that it was *Harper’s flour: he treated it precisely as his own, sent it to his own commission merchant, to whom he was in the habit of sending his produce, and directed him to sell it, and remit the money to him at Baltimore. Suppose, after the money was in the merchant’s hands, Harper had been in Richmond, and, having a most pressing call for money there, had applied to this merchant tor it: would he have got it? would not the merchant have told him, “I know nothing of you in this business; I have received flour from Mr. Patton, have sold it according to his directions, and am bound, both by those same directions and my own letter to him, to remit the proceeds to him at Baltimore?” could Harper have enforced his demand? No. Between him and the commission merchant, there was no contract, no privity. If Harper had seen the merchant about to abscond full-handed, he could not have saved the debt, as one due to him, by attachment or any other process. This, then, was no longer his property, or his money. Whose then? Patton’s. The merchant had passed it to his credit, along with all his other funds in his hands. Is it not clear, that this was the idea of the parties? Harper had parted with all control over the flour, with the understanding that it should go to Patton’s agent, and the proceeds be a payment, pro tanto, of his debt: when? whenever received by Patton’s agent. It appears, that Patton was in the habit of sending produce to this same agent to sell; this proves, that he thought his money safe in his hands. We may fairly conclude, then, that he had no objection to that risk in regard to this flour, which he was constantly incurring in all his other produce. Nor do we hear, that he made any difference in this consignment; *114that he informed the merchant, that this was not his flour, nor at his risk, or desired him to enter it as Harper’s flour, and to credit him by the proceeds: on the contrary Patton’s orders were, “sell this flour, and remit the proceeds to me at Baltimore, about the 1st of May, when I expect to be there.” Suppose Patton had gone to Richmond, immediately after the flour was sold: *and, having occasion for the money, had made application to the merchant for it: ought he not to have paid it to him? Suppose Patton had got timely notice of his tottering condition, could he not have made any arrangement in regard to this money, precisely as he could for his other funds in the merchant’s hands? These are the indicia of property: they all prove, that it was in Patton. I must conclude, then, that, both from the meaning.of the parties, and the operation of the law, this was a payment to him. The money in the merchants hands was his; and his must be the loss from that merchant’s failure.

GREEN, J.

I think the judgment of the circuit court should be affirmed.

The substance of the transaction was, that Harper constituted Patton his agent, to dispose of his flour for him, in the usual course of Patton’s business, and to apply its proceeds, when received, to Harper’s credit with him: and an authority to dispose of it through the instrumentality of a sub-agent, was not only implied from the nature of the transaction, but more strongly, from the contemporary declaration made by Patton to Harper, that he should dispose of it through the agency of a commission merchant, with whom he usually dealt, and whose solvency and integrity he had no reason to doubt. And Harper admitted, that Patton had used all the diligence in his power, to carry the arrangement into effect, in causing the flour to be sold, and endeavouring to secure the proceeds. Suppose the arrangement had been, for Harper’s accommodation, and in order to induce some other creditor to forbear, that .Patton should send the flour to his commission merchant to be sold, and should account for the proceeds to such other creditor; could such other creditor have held him accountable for the proceeds, though never received by him, and that without any default in him? The circumstance, that Patton alone would maintain an action against the commission merchant (if that were admitted) does not vary the case: for, in that *case, he would be held accountable to Harper, only as a trustee for him.

There is no valid objection to the form of the forthcoming bond, or the judgment. It is sufficient, that the bond recites the levying of the execution, and upon what specific property: if that had been the property of a stranger, the bond would have been nevertheless good and binding. The irregularity in the terms of the judgment is only' matter of form.

COAETER, J.

I am of opinion, that the judgment of the circuit court must be affirmed. I„ cannot perceive how the circumstance, that the merchant entrusted to sell the flour, was the commission merchant who usually transacted Patton’s business in Richmond, can affect this case. It is said, that Patton confided his other business to him, and therefore all he wanted was to get the flour into his hands, as he would then be sure of the money, so soon as the fiour was sold. No doubt, he thought it would be safe in his hands: if he had not though so, if he entertained a suspicion of the agent, he ought to be held accountable for not making his suspicions known. The more confidence he had, the more innocent and honest he is. He acted with good faith. Both parties are equally innocent: and the question is, who shall bear the loss? The debtor, who has gained time from his creditor, to try and make his crop available • to discharge his debt? or the creditor, who has granted this indulgence, and moreover rendered services, without compensation, in sending the flour to market?

The debt has not been actually paid to the creditor. There has been an effort to pay it; but the money has been lost, without the fault or neglect of either party. It seems to me, that the case must be decided, as it would be if Patton had had no particular commission merchant in Richmond, but the flour had been sent to one named by either party, and agreed on by both, to be the person to whom it was to be sent; or, as if Patton had been authorised to *send it to any one he might select, and had made the selection with due caution and care.

The question is, whether Patton, by himself for his agent, ever received this money in discharge of this debt? Was the merchant his agent to collect this debt for him? to receive the money from Harper, or from the sale of his effects, for Patton, so that, so soon as the effects were sold, and the money received, the payment of the debt was complete, as much so as if it had been paid into Patton’s own hands, and he had given a receipt therefor? It is admitted, that Patton was to be at no risk in the transmission of the flour. He had a right to have the proceeds remitted to him at Eexington, or at some other equally convenient place. His debtor was bound to seek and pay him his debt, he had an execution hanging over him, which would force a payment into his hands at home: therefore, it cannot be supposed, that he was to travel" to Richmond, to collect it there, unless perfectly convenient for him to do so: or that he was to be at the risk of its remittance to him from thence. He received no premium for any risk, and was to be at none. This seems to be admitted on all hands: and yet it is insisted, that he must lose the debt.

Suppose the merchant had not failed, but had remitted the money in bank bills, and they had been lost. This could not be Patton’s loss, unless the risk of remittance be thrown on him. Suppose the remittance had been in a bill of exchange, believed at the time to be good, but was dishonoured, and finally proved good for nothing: it seems to be admitted, that if such a bill had been taken in payment for the flour, the.loss would have been Harper’s. Should it be otherwise, if the money had been paid for the flour, and instantly laid out in a bill, for the purpose of remittance?

*115But why was Patton to have any thing to do with the flour? His aid was called in, no doubt, that he might be certain, that the money, when received, would be paid into his hands. Suppose this object had been effected in some other way: suppose, for example, Harper had said to Patton, *“I will send this flour to such a merchant in Richmond; I will assign the bill of lading to you: I will moreover write to the merchant, that my property is under execution for your debt, and that the net proceeds of the flour, when received, are to be paid to you; that he shall consider this as an irrevocable order in your favour for those proceeds, and shall pay the same over to you or your order, as if you yourself had sent the flour to him.” The flour is received and sold for cash, and the merchant fails. Surely, this would be no payment of the debt by Harper. I cannot well see how such a case would be materially variant from that before us.

It is admitted, that Patton has been guilty of no negligence; that he was to receive no benefit by the transaction, but on the contrary, submitted to delay, and encountered some trouble, for nothing ; and this, at the pressing solicitation of his debtor.

But it is said the merchant was the agent of both parties, in different stages of the transaction : that, in receiving and selling the flour, and even in receiving the money for it, he was the agent of Harper, but that, from the moment he had accomplished the receipt of the money, he was the agent of Patton, and answerable to him alone for his conduct, since he knew nothing of Harper in the business, and could only be responsible to him, in a controversy to which Patton was a party: that the moment he sold, and the money was received, Harper’s risk ceased; it was then Patton’s money. How so? True, he has a right of action for it: but so he would have had, if the flour had been lost by the negligence of the merchant; or if he had, without authority, sold it on a credit, and the debt had been lost; in which cases, it is admitted, the loss must have been Harper’s. The liability of the merchant to Patton then, cannot be the test of the question, who is to bear the loss. He would have been in like manner liable, if the contract between Harper and Patton had expressly stipulated, that, until the money was actually paid into Patton’s hands, it should be at Harper’s risk. ÍSTor would these have been Contradictory, unlawful, or unreasonable stipulations. It would only have been expressly stipulating for what appears to me to be the legal and necessary meaning and result of the contract that was made. The merchant (it seems to me) held Harper’s money to be paid over to his creditor, who had also a lien on it in his hands, or rather an absolute right to enforce payment of it, but he was not less Harper’s agent for the purpose of paying over, than he was his agent for receiving and selling; nor can he be otherwise considered, merely because he did not know Harper in the transaction. This also would equally have been the case, if there had been an express stipulation (unknown to him) between Harper and Patton, that all was to be at Harper’s risk, though transacted in Patton’s name, until the money was paid over. He stood (as it seems to me) in the nature of an acceptor of Harper’s draft, in favour of Patton, to pay the proceeds of the flour over to him as soon as they were received.

If Patton had drawn on the merchant for the proceeds of this flour, to be paid the moment it was sold and the proceeds received, (which would have been a method of drawing it out of his hands, with as little risk as possible to Harper,) and this order had been presented and accepted, on the day of sale, for the net proceeds, naming the sum, for which the flour was sold, and (the acceptor failing at the instant) the draft had been dishonoured: would this have been Patton’s loss? or, suppose he had arrived in Richmond, an hour after the sale and receipt of the money, and had demanded it in vain. In either case, would it have been a payment by Harper of his debt? If it would, it must be because the money was to be at Patton’s risk, whether in a course of remittance or otherwise, from the moment the merchant received it, it being then a complete pa3Tment to him, not simply a right in him to receive and enforce the payment of it, to be placed to Harper’s credit, when received.

On the whole, I think that the merchant, though responsible to Patton, was, nevertheless, so far as it regards the ^question of risk, as much the agent of Harper, to pay over the money, as he was to receive and sell the flour; and that, until the proceeds were actually so paid over, unless some fault in Patton should occasion loss, the whole risk was on Harper.

CABRITO, J.

The question is, on whom the loss occasioned by the failure of the commission merchant, shall fall?

The arrangement between the parties certainly constituted a bailment. But the question, as to the loss, depends not so much on any principle peculiar to the law of bailments, as on the intention of the parties, as to the time when the net proceeds of the flour were to be applied to the credit of Harper on the forthcoming bond. If it was intended, that the money should be thus applied, at the moment it got into the hands of the commission merchant, then the receipt of the money by him, made it, ipso facto, Patton’s' money; and, consequently, the loss of it must fall on him. If, on the contrary, it was not intended by the parties, that the net proceeds of the flour should be applied to the credit of Harper until Patton himself had received them, or had applied them to his own use, or until by due diligence, he might have so received or applied them, then it is manifest, that the mere receipt of the money by the commission merchant, did not make it Patton’s money; and, consequently, that as Patton has been guilty of no negligence, the loss must fall, not on him, but on Harper. Bearing these principles in mind, let us look at the situation of the parties, and the terms of the contract. Patton’s debt was perfectly secure, and he had already resorted to legal measures to enforce payment of it; and that object would have been speedily *116accomplished, if the law had been left to take its course. Overcome by Harper’s repeated and urgent solicitations, he consented, most reluctantly, for Harper’s accommodation, to suspend' legal proceedings, and to send the flour to Richmond, to be sold by' the instrumentality of a third person, with the understanding, that the net proceeds ^should be applied to the credit' of the forthcoming bond. Did the parties intend, that Patton should take on himself the risk of the insolvency of the agent of sales? Did they intend that Patton should be debited with the net proceeds of the flour, although they might never come to his hands? In the situation in which the parties stood towards each other, it would have been most unreasonable in Harper to ask such a stipulation, and folly in Patton to have acceded to it. No such stipulation can be inferred from the case presented by the record. The contract undoubtedly was, that the proceeds of the flour should be applied to the debit of Patton, when they should be received by him. This view of the case is not changed by the circumstance, that the person selected to sell the flour was the commission mer- , chant who transacted Patton’s own business: he was selected, not because he was Patton’s merchant, but because he was believed to be a safe hand. Nor is it material, that Patton might have sustained an action against the commission merchant: he might also have sustained an action against the common carrier, by whom the flour was sent to Richmond, if that carrier had violated his trust by selling the flour, and applying the proceeds to his own use; and yet, in that case, nobody would pretend, that the loss, if the carrier proved insolvent, would fall on Patton.

The objections taken to the bond, are not valid. The bond recites the levying of the execution, and the property on which it was levied; and even if that property had belonged to a stranger, it would not impair the obligation of the bond. -And, from the nature of the transaction, the property which had been taken by the sheriff in execution, must have been restored to the owner, upon the execution of the bond for the forthcoming and delivery of it: if it had not been so restored, that would have been a substantive ground of defence ; but nothing of the kind was pretended.

The irregularity in the terms of the judgment is merely formal.

Judgment of the circuit court affirmed.