The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1889-01-06

Judge Hammond, Of the United States
Court, yesterlay read the opinion OF Circuit
Judge Howell L. Jackson, pronouncing
judgment for the plaintiffs in the case Of
Robert Moore * Co., OF Cincinnati, VI.
Hill, Fontainc & Co., OF this city. for
S9jl.35 and interest since February !,
1886, and his own opinion dissenting from
that Of the Circuit Judge. Both opinions
are elaborate and treat Of the legal liability
OF n cotton factor who innoccntly sells for
an assignor cotton TO which the consignor
had NO title. The case was argued before
the two Judges and they disagreed rs 10
the liability and will certify their disagree
mcnt 10 the Supreme Court u the United
States, 80 that Hin, foniaine Il Co., may
appeal Il they desire, although the amount
is lea than 5000, which is required
ordinarily to give that Court jurisdiction.
The facts Of tue case arc rs follows
In the winter Of 1855 one Samucls, who
was captain Of the steamer Mysa. running
In the Tennessee River. shipped TO Hill,
Fontaine 4 Co., from Chattanooga, a lot
OF burnt cotton, which they hal packed
into forty eight bales and sold ior his ac-
count, making advances upon the same.
lie shipped the cotton in his own name
and I'LL, Fonuinc 4 Go. dealt with him
M the real owner and believed him 10 be-
such. In January, 1885, Robert Moore x
Co. wrote 10 llill, FonD'ine * Co., claim.
ing the cotton as their own and demand.
ing is proceeds At that date four bales
were on hand unsold, but the balance hal
been disposed Of aud the money was
placed 10 tire credit Of Samurls. II
turned out that Moore X Co.
had shipped by the MyEa on n
through bin Of lading 10 Cincinnati
ever the Cincinnati southern Railroad
seyenty-ninc bales Of cotton, and while
the boat was en- route fire occurred, 10y
which this cotton, With other cotton, was
40 badly damaged that the bales were In.
distinguishable, except fpriy-iiyo bales OF
plaintiffs, which were forwarded 10 them,
The other being sent with all the burnt
cotton 10 Memphis, ~ belorc stated, IN
Samusls's name, rs owner.
JUDGE JAcHsoN's OPINION.
The Circuit Judge holds that under the
maritime law tho muster cannot sell d
damaged cargo after the vessel arrives NJ
her destination, and that oil the duty
Samuels had In the matter WIS to notify
plaintiffs and store their cotton ior them.
lie had no implied power 10 sell ", and
Hill. Fontaino 4 Co., by their own con.
fession, did not deal with him as master
but NJ owner, and they cannot pretend %
have been deceived in that rcgnr1.
lie holds that II the Tennessee case Of
Turk w. Roach he the lsw 81 oil Il IL only
10 to the extent Of protecting mere agent
20 sell. who pays over the proceeds 20 the
wrongdocr ut the time OF the sale, That
Samuels could not convey my highel
title than he himself held, which was none
Mt all, and anyone dealing with him mus
take the consequences of any inhunity N
his title. That llill, Fontainc 4 Co hclt
toward him dual relation, that of m
agent 10 sell and that Of creditors b,
advancing him money on the ig'tl
Of his title and ownership Of Oh,
cotton, relying upon the iacl0n' lion I,
secure themselves Tor these advances, an,
that when they nold the cotton they wcr
selling Il ~ pledges Of II for their owl
debt and were thereby appropriaiing Il q
their own use, and hence were guilty o
n conversion and liable to the plaintiff
for their share Of the fgriy.elght bales
amounting 10 about thiriy-ipur bales, an'
for this they arc entitled 10 judgment
The opinion maintains both thcBo PROPOSE
tons with elaborate Argument and eta
ton Of authorities
JUDGE nANNoNp's oFiSioN.
The District Judge holds that Hill, Fon
tame & Co. were nothing more than agent
% sell nnd In no wone attitude by payin
over the proceeds in advance Of the sal
than u they had paid thom over alter th
ale, and he denies that there was an
dual relation IN the transaction, i bcin
ono OF the incidents Of brokerage for SAID
whether by an auctioncer or by iacloI
that hc may advance the estimated pric
Of the goods, and the so-callod factors le
~ nothing more than n privilege OF exc
cutting the commission TO sell the good
and a restriction on the customer iron
Withdrawing the commission 10 80
unless he repays the hcior's nd
vanccs. tho factor In no sens