The republic. [volume] (Washington [D.C.]) 1849-1853, 1851-04-19
THE REPUBLIC.
supremc Court of the United states.
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L II II N n L u ID uIO.
supreme Court of the United states.
No. 6l-DEoEmpER TEnn, 1850.
John A. Warmer and Archiinedes j. buckner ana
William Heald, who survived JACOB Heai1 ana
Samuel Woodward, trading as Heaid' WOOD
ward s. Co., appellants,
Thomas p. Martin, who survived Spencer Frank
lin, late trading Martin x Franklin
IN anneal from the circuit court Of the United
Tor the eastern district Of Pennsylvania.
Mr.. Justice WAYNE delivered the opinion Of
the Court
We state such circumstances In this case as
may be necessary for the application of our
opinion TO other cases of a like kind.
Martin and Franklin were manufacturers OF
tobacco in Richmond, Virginia. They were
in the habit Of shipping the article to Charles
Essenwein in New York as their agent and
factor. In April, l84l, they made the first
shipment upon new account to Essenweln,
and at intervals during the summer made other
consignments to him. II was their practice to
draw upon Essenwein, payable In four months,
for an estimated portion OF the proceeds OF
sale; amongst other drafts were the following:
ls4l-May 81. at four months, due Sept. 3d.. $500
June ~, A" Oct. To-. 1OO
July 3, " Nov. b.. 500
July 29, Dec e. ooO
These drafts were not paid by Essenwein. The
consignments during the period when the drafts
were drawn were one hundred and sixty two half
and one hundred and sixty whole boxes OF tobacco.
Essenwen's entry of the consignment is estate
mcnt of tobacco received by Charles Essenwein &
Co. from Messrs. Martin and Franklin, Of Rich
mond, Virginia. to sell for their account"
The business relation between them in this
transaction that of principal and factor, unaf
fected by any particular instructions from the
principals, or by any right power acquired by
the factor, beyond his general commission to sell
the tobacco according to the usages OF trade IN the
place TO which it had been sent for sale.
In August, ls4l, Essenwein became embarrassed
and sailed for Europe; he left his business under
the management Of his clerk, Englebert CaPrano
On the Sd Of September Essenwein failed. Among
his creditors was John A. Warner, OF Philadelphia
A short time before the failure, MIR. Warner, be-
tween whom and Essenwein there had been much
previous dealing, went to New York. he then
obtained from Caprano, the clerk, from the store
of Essenwein, a quantity Of tobacco, segars, and
other merchandise. The proof in the case is that
the tobacco part of the consignments which
had been made within the dates before mentioned
by Martin and Franklin to Essenwein. Warner
says in his answer to the bill Of the complainant,
that the same purchased by him for a full con-
sideration and price, in like manner as he had fire.
uuently purchased from Essenwein; and that he
did not know that the tobacco belonged TO Martin
and Franklin. But he admits "the insolvency of
Essenwein was believed" In hs amended answer
he says he purchased the tobacco bona fide, in
manner as had been before stated by him. That
II paid for after the purchase. by has paying
and adjusting thirty Thousand dollars of his notes
iohich he had loaned to Essenscein, by his pay
ing and Tedeeming them. Subsequently, in three
days after Essenwein's failure, Heald, Wood
ward & Co., of Philadelphia, bought from Warner
two hundred and ffty-eight boxes of tobacco,
known as Martins tobacco. The proof in the case
is that it was part of that which Warner had OBJ
tanned from Essenwcin's clerk, which had been
consigned to Essenwein by Martin and Franklin,
as already stated. They aver, and there is no rea
son or cause to doubt it, that they purchased from
Warner fairly and for full value. That they had
no knowledge whatever at the time that the tobac
CO, or any part Of it, belonged to the complain.
it, Their contract, however, with Warner, was
rescinded in part. They received from him only
one hundred and twenty four boxes instead Of the
two hundred and fifty eight, which had been sold
to them.
From some other dealing between Head, Wood
ward, & Co.. and Martin and Franklin, the latter
have drawn an inference OF an agency OF the former
for them in this transaction. We think there
such agency--at the same time will say, that
there was unbecoming and apprehensive reserve
in their reply to the letter OF Martin and Franklin
making inquiries concerning their tobacco, which
Warner had received from the clerk of Essenwein,
as part of which Heald, Woodward & Co. had
bought from Warner and was then in their pos
session. II was, however, not q concealment from
which it can be inferred that Heaid, Woodward L.
Go. meant to commit either legal or moral fraud
upon their correspondent 1t appears that they had
nothing to do with the transfer Of the tobacco to
Warner, nor any other than fair connection with
him in the sale Of it by Warner to them.
From this statement we have doubt of the
law Of the case 1t may be applied, too, without
any imputation upon the integrity Of either of the
parties concerned. The defendants have misap-
pretended the principles which govern the rights
of themselves and the plaintiffs; but there 10
thing in their proceedings which impairs mercan-
tile character. They have been much mistaken,
without meaning premeditatcd unfairness. II some
temper had not been thrown into the case at first
there probably would not have been any charge OF
fraudulent intention. No will be surprised,
from the proceedings in the cause and the argu.
ment made upon it in this court, that its merits
lost sight Of in the effort made on the side
to establish fraud, and on the other to resist it..
The exact questions raised by the record are,
whether not the transfer Of the tobacco to War.
ner Invested the plaintiffs, ownership of III; and
whether or not Warmers sale of a part of il to
Head, Woodward & Co., for a full consideration,
without any knowledge upon their part of the
plaintiffs interest, when they bought from War
ner. gave to them property in it.
Warmers dealings with Essenwein we believe
to be true. He puts his right, however, to retain
the tobacco upon footing in his answer not appli
cable to it. He says he bought without knowing
that Martin and Franklin had any interest in the
tobacco. and that be believed Essenwein the
owner. His inference practically wac, that he
might therefore set of against the price his labi-
lity for the notes which he had lent TO Essenwein
debt due by Essenwein to him. This only
be done upon the principle that where two persons
equally innocent prejudiced by the deceit of a
third, the person who has put trust and confidence
in the decever should be the loser He discloses in
him out Of any such relation to the plaintiff. II is
his knowledge at the time of the delivery of the to-
bacco TO him Of the future of Essen,cein.
In all OF those cases in which il has been ruled
that where the buyer at the time of the sale knows
nothing of the relation between the factor with
whom he deals and the principal by whom that
factor has been employed, that he will be protected
by the law in case of The msadvcnture occurring
by the default Of the factor, is admitted that the
risk which principal runs through the nadvcr-
Ience or misconduct OF his agent, may be avoided
by the purchaser having notice inn he
fore the completion Of the purchase or delivery of
the goods, Of the agents commission. Peake's
Rep, p. III. Among the instances which the law
terms notice enough for such purpose is the in
sovency of the factor known to the buyer. Escott
and Mward, Term. Rep, SOL Is. Warner says in
his that, at the time he made his purchase,
1.-THE insolvency of Essenwein believed"
Those his words, and according 10 all that
caas Of cases asserting the principle under which
his answer Puts. him, such knowledge was sufi
Gent to entitlc the plaintiffs to avoid the sale.
a - l. -. i-..AI l.