Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1868-12-27
DECISION az TIE SUPREME
COUHT OF TENNESSEE.
At BrOwnsyin E, jane Term, lses
Taylor. 90 8 CO. V. 20.

= Armstrong took the cotton to Mem
phis, and in fraud o. his duty to Pops
put it into the possession of Taylor. Col
i Mcleod, merchants, and employs
= them to sell it on his ARMSTRONG; &C
count, representing to them that ne wa
! the owner Of the cotton.
= Taylor, Cole * NcLeod, supposing th
cotton to be Armstrong;, aGd withCu
any notice that it vas not, sold 1t ant
paid the proceeds to Armstrong, who ab
seconded with the money, and has no
since been heard from.
Pope brought this action Of trove
against Taylor, Cole & Mcleod for To
conversion of the cotton, and upon tn.
rssue Of not guilty and under the in
structions OF the Court, hat upon TIL
state Of facts, the defendants were Habit
% the plaintiff for the value of the cot
Ton, the jury found a verdict against III.
defendants and Judgment was Rendered
accordingly.
The counsel of the defendant excepted
To the ruling OF the Court, and now ic.
lists that the law of the case is, or ough'
TO be, that where an agent is emit l5tet
by the owner, with the possess IN o
properly Of the kind and TOT the puT'
pose as here, aud puts it ia til,
stands of a factor TO sell, a. d tax
NGGNUA GGiAo Nh5 EnI4c lhFt pLlo WI NAt
proceeds TO the sgGnt, and without noticl
AOf the fraud Of the sgsnt, or OF the title o.
The owner, thGt ia such case the factor i;
not responsible to the owner in trover fol
the conversion OF the property.
There can be no DOUBT that the agent
in such case cannot make to an innocent
purchaser a title to the cotton, IS against
the owner nor can he lthe RgenO eause
the title to be put in such purchaser ty
employing . factor, who follows the bGsi-
ness of selling cotton, to make the sale.
The agent cannot give to his sgent-the
factor-anythiDg more tff Give to such
purpose than is possessed by himself
This is elementary law.
The owner Of the cottOn, in such case,
may follow the cotton, into w~hCeesover's
hands it has gone, and been sold or
otherwise converted, and ecoVa
its value, and it is not defense against
the action of The owner, that the party
sought to be ci aged, bought and paid
!or II 10 the ususi course Of trade, with
out DOtice that his vendor did not have
the right Of property in the cotton, or
the power TO sell It.
NJ sTe possession alone Goes not vest the
agent with power TO give the purchaser,
however innocent, the right of property
against the owner. Nor is it enough so
to do, that the OTner put the agent into
the possession. Something more must
be coupled with such possession, to ena
bic the agent TO effect q valid sale to the
purchaser, against the will or iastruc-
tons Of the owner. That something
more eXists In the cases where the wDer
has invested his agent in possession, with
an apparent power to sell, or with the
title to the property, or with the custom
airy iRdicjG Of title, which purpOrt that
the title or right Of property is in the
party having the possession. Tle OBJ
viOus justice is, that if the owner has put
the agent in possession, and has By acts
d any Kind held cut the agent as having
authority to sell, or hiss given the agent
the meas Of holding himself eutas the
owner; in such cases the purchaser, who
has been thereby mis!ed and basn ia
Guced by r. asOn Of such apparent au.
thoFity or iadicid Of title, TO part with
mis- money for the property, without no
tics Of the real feet that the agent has no
authority to sell, or that the seller in
possession is not the real owner, Cpon
plain principles Of natural justice, is en-
Titled to hold the property against the
owner. The fault Is OF the owner, tbSths
has furnished the sgsnt with an apparent
power to sell. or with an apparent title
I " AAgh A1hI0AAG q AAhla = ALAaH AAZ y -
sr is repealed from recovery, upon the
principle of what Is usually designated sn
estoppel IN pals 20 Wend., Saltus vs.
Everett; % ID. Hptfmsn vs. Csr0T; 10.
Ala. $50 IS 90. ZIG; II Wead., so,
A familiar illustration Of the apparent
power to sell, which will eusble the
fraudulent agent in possession to confer \
good title upon an innocent purchaser,
sgaiI 81 the Instructions or will Of the
owner, and in fraud Of The owner, may be
found in the u=ugl dealings between the
owners Ct merebsndige and OF selling
factors. The factor to sell follows the bu-
siness or occupation Of selling the mar
chandise of others. In this character ne
holds himself cut to the world. Mer-
chaDdise put into his hands, is understood
by the public as 80 put into mis- hands for
the purpose Of sale, and the public have
the right so to presume. The wner
4 OF merchandise, putting it into the
hands Of such factor, holds the factor out
to the public, in resT ect Of such meTchan-
disc, as having the possession in the way
of his occupation, and for the purposeof
sale or disposition in the ordinary course
Of his occupation. Whoever deals with
such factor, in the regulsr course Of his
occupation, and in coed faith, may right
folly presume that the factor has author
ity so TO deal. And this, upon the prin-
eipie that the owner has not only given
the possession to the factor, but has also
bestowed upon him an apparent author
it's to sell.
A distinction, however, exists, which
nav be proper TO state, and which viii
illustrate this doctrine Il was made by
this court many years sgo, in the case OF
Hull W. Walker. The case was, Goodman
& Means were merchants in Memphis
and followed two kinds of business with
regard to cOtton-oDe Rs factors to sell,
the other as storage fsctOrs-thst is, they
received ana held cotton foF planters on
| storage for shipment, So was customary
at that day, to New Orleans and else.
where. Hail, 8 planter in Mississippi,
sent his cotton to Goodman & Means, for
storage only until ordered to ship, aud not
| for sale. Being in stress for money, Good
man & Mesus sold the cotton to Walker,
who bought In the usual course OF trade,
and paid the full value, and without no.
lice OF the want of authority OF Good
man & Means 20 sell. Hull brought al
action o. trover sgainst Walker tor the
conversion of the cotton to his use. The
case came to this Court on appeal, and 1t
was here held that Walker was liable.
The cotton was placed 10y Hull with
Goodman 4 Means on stOrsge, and for
| that reason their sale TO Walker gave
him no title. Had they followed the
business only of selling factors, and the
cotton been put in their hands by HUI,
not for sale, 1t may Ice presumed that .
sale made by them to Walker, without
notice to him of The instructions 10 them
net TO sell, would have carried the title
t C Walker against Hull. And this be-
cause, in such case, Hullnot only put the
Gotten in the possession Of Goodman &
Means, but by so doing held them out to
the public as having authority to sell 10.
Another class OF cases may be mea-
toned, where an agent, without actual
! authority to sell, 10 nevertheless able to
make q good title to q purchaser, foE
value, without notice. Cases OF this kind
are, where the agent hes not only pos
session, but Is further clothed with the
apparent title, or furnished with
the ordinary indioid Of title,
by the ewner. Thus, when upon a ship
ment Of goods the owner consigns them
to his agent, and takes and forwards TO
the agent o bill of lading TO him as con-
signee Of the goods, such bill Of lading
indicates, and Is evidence OF ownership
of the goods by the consignee; and, per
sons buying from such cOns.gnee ia good
faith, and 10 the usual COURSE OF business,
and for value, obtain the title against
the owner, although the consignee was
really as between himself and the owner,
no more than Sn agent, and without
authority to sell. Iu this latter class may
be Dlsced the cases where an sgent lay