New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1875-03-26

were commission merchants at Albany to b.
| sold by them in the course of their business
| They sold . portion of the -four at Albany
| shipped . part of it to New York which wa
sold there, and returned the residue or
hand to the plaintiffs when tho defendants
| . balance of $2ll remaining in their hahdi
from the proceeds of the sales actually
made by them and for the value of Isl
barrels of -four sent to New York and cold
there, the proceeds of which were never
returned TO plaintiffs, an order of arrest
was taken out by the defendants. In their
defense they set up certain usages and cir
| cumstances from which they claimed that
their relations to the plaintiffs were not
TALLY those of debtor and creditor; that
when they received the -four they were
carrying on . general commission business
at Albany; when property was consigned
to them for sale they paid the freight and
other charges upon it, and when they sold
it they did so in their own names either
separately or with other property OF the
same description belonging to other
parties as might prove convenient and
payment for it in gross and credit.
ing the plaintiffs their proportion of
the purchase p. &c; that they deposited the
proceeds of their Gales in general account
without distingr 'shing the POI tions arising
from the sales of the property OF any par
ticular individual, and in making payment
to their principals or consignees they did so
BY accepting and paying the drafts drawn
by them tor the balances appearing Dy way
OF credits upon their books, or by remit
tances made directly to them. From this
mode of transacting, and which the de-
PENDANTS showed was followed by others
engaged in the same business at Albany
and other commercial cities, the defendants
insisted that the moneys they received from
the sale Of the plaintiffs flour became their
property instead of the property of the
plaintiffs, and they became indebte simply
to the plaintiffs for the balance lemainir
in their hands after their advances TO
commissions were deducte ID. The court.
relations existing between the principal and
factor, decided that where q particular
mode is adopted and pursued for the trans
action Of the business of another with his
knowledge and assent, he will be concluded
by it and subject to all the consequences
resulting from 1t. But where that differs
from the settled duties and obliga-
tons established by law, such kn0wl-
edge and assent must be shown
before the party entrusting his business
to another can be affected by the change.
That commission merchants to whom prop
erty is consigned by the owner are the
factors Ut the owner. They do not acquire
any title or interest in the property itself
beyond q mere lien for their advances in
paying the expenses of it's transportation to
them. If they have actually made further
advances upon the faith OF consignments
made to them that will give them no title
to the property, but will merely increase
the extent Of their lien. When they sell
the property. even though they do so in
their own names, and may consequently be
regarded by the purchaser as the owner of
it, rs between themselves and the con-
signees, they will be deemed as selling as
the agents of the latter and as selling their
property. There is nothing in such trans
action which WILL vest tho factors with the
title to the proceeds derived from such
sales. On the contrary, they will receive
such proceeds as tho substitute or repre-
same lien under the trust implied, OF course,
that the excess beyond what shall be re.
CURED to discharge such lien will be held
tor and paid over to the consignees. Ii the
factors mlngle such proceeds Ut sale with
their own funds by deposltlng them IN bank
to their credit in general account, use the
money in their business generally, and fail
TO pay over the same on demand they
thereby subject themselves I'VE TO the legal
OF anothers property, and to an arrest I'M
der the provisions OF the cooe, as having
received the money IN hduclary capacity.
The understanding OF the Legislature seems
to nave oeen tnat factors agents ana pro-
kers, wnen acting IN tnelr capacitles as
such, are acting IN hduclary capacltles, ana
they nave accordngiy PROVIDED 1or their
arrest, as we'll as tor the arrest OF all other
persons who may receive and mlsapply
moneys received Dy tnem IN me course o;
their nduclary felatlohs. customs ana
usages which would have the effect OF re-
levlng party from tne dutles ana obhga'
tlons the law wohd otherwise impose upon
MIN, are not aaoWeu 20 prevail unless the
actua! assem- OF the otner party Is secured
TOT tnelr observance, or tney are OF SO
notorious q character as reasonably TO lead
70 the conclusion taat ne must nave known
OF their existence ana INTENDED 10 assent TO
them. And even then they must not be
unreasonable nor positively unlawful That
Gent to deprive party OF the rights other
wise secured to him Dy law Is 90 well estab-
llshed by the decisions as to need only a
reference to them to confirm tnat conclu-
sion" IA johnson, 5l6; Seld. 20. lOl. lO2;;
Is N. Y. Rep., s592, 4Ol, 4U2; "a N. I. Rep.
Alb. That q commission merchant or
factor stands IN q nduclary rela-
ton to his principals within the mean
ing of the bankrupt act of 1867 was
decided by the Supreme Court of Missouri
in the case OF Lemecke VS.: Booth, AZ Mis-
souri, Reports, p. 387 Post. In that case the
cGarS saio: e Inc question y mere presented
whocner iacsor VI commission Herchaut
s!anas IN nuuclary lela.lon 10 ms Prinr
clpals III .espocI y. I!e ploceeus VI eales VI
comMlss sI! goEus w w .n .ne neanlns o.
s socs IN Snlr. VI .n1 oanAiuPI acs ~
lou: ne se eL e p,9'lues Iha1 no ueoe
c ~ W eno iasIu ~ onoelllomens =.
tIe oahkruPI " nis uoia'Ga'lon as = puonc
oncoi, VI Mnno aoIns ~ any nnuclary
cndIaCIoi oAaH 10 uiscuaiScu unucI tnis