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

having any property in the goods. Where
fore. the act Of selling merely rs the agent
OF another Is not conversion 10 the
agents own use any more than 1t would
have been ii there had been no advances,
but only n sale and an immediate payment
over of the proceeds 10 the wrong dOer.
That ii Turk W.. Roach be the law, the de-
PENDANTS cannot be liable except for the
four bales on hand when the notice OF
plaintiffs rights was given and the COM
missions of sale retained The opinion
susta.ns Turk vs.. Roach andreviews many
eases to show that the contrary doctrine
Is not the general commercial law. IL
says the point has never been touched 10y
the Supreme Court Of the United States,
nor finally settled In England. The opin-
ion argues that there eau be no conversion
by the mere act OF sale rs the agent OF a
,hici. II the agent himself bc innocent OF
all knowledge Of the theft, except where
the agent becomes Interested In the prop
orty itself by some claim Of general or
qualified property in the thing while u
simple factors lien for advances is not,
though the dealings may take such form
us would bring the case within that cate
CORY, and then n conversion would take
rs master Of the steamboat, the opinion
holds that IL u not necessary that the cir
cumstanccs should have been such as TO
pass the title, through n legally implied
power OF sale IN the master arising out OF
the disaster TO the cargo. in order that the
defendants DO protected. IL j. enough II
the master might reasonably believe that
bic power exerted aud for any error Of the
masters judgment in this respect tho
owner should suffer and not bare agent
whom the master employed TO sell tho
cotton under his supposed power, and the
defendants are M much protected when
ignorant OF the facts rs II they had known
them.
born JUDGES AOREE.
Il seems 90 b. the result 81 the case that
both Judges agree that the Federal Courts
are not bound by the State decisions In
the matter OF commercial law, like this.
Both admit the soundncss OF Turk ".
Roach 10 n limited extent, but they dis
agree in It's application 10 the facts Ot this
case. The Circuit Jndgc thinks the de-
PENDANTS do not come within H. because
they made advances on the security OF tho
cotton, aud the District Judge thinks they
do. because that security was only AN in
cidcnt OF the agency Ia sell, and not any
claim OF title Ia the cotton or property IN
ID. This case Of Turk ". Roach Is famous
case, where the Supreme Court OF Tonnes
see oycrrulcd Taylor VI. Pope, q preceding
case. holding directly 81 the contrary. In
both these cases the owner Of cotton put
IL in possession Of persons 10 be sent by
them 10 Memphis " tho owners com
mission merchants These pcnOns fraud
ulently carried Il 10 their own commission
merchants. had II sold and pockcied the
money. The commission merchants max
ing the salea wep sued by the rigtiul own
ora. The Supreme Court Of Tennessee, IN
| the iint case, held thcm liable; and in tho
second. that they wcTo not, overriding the
the first case directly.
In both those cascs tho proceeds wer,
paid over after the sale, aud In neither wa
| there the feature OF advances made upon
the cotton before salc aud here Is wher,
| the trouble comos In. II the first Tcnncs
see case bo law, ~ both these judges init
mate may be ultimately settled by tbs
Supreme Court Of the United States, th'
| yictimiAcd factor Is liable at all events an,
can never escape. II the second aud cx
isiing case bc law, he can escape II he doc
nothing but sell and pay over lhc proceed
after sale, but II he docs more and make
advances before sale lac i liable
according 90 Judge Jackson, bu
not according 10 Judge Hammond. Boil
| judges agree that the question depend
upon the nature Of the Transaction be
tween the parties M affecting the intercs
OF the factor In the property. one says
IN pledged for debt, aud tho pledgOr cal
baye no better title tlmn the Pledge, an,
the other SAYS Il Is not n property intercs
that the Pledge acquires, but only
bare right 10 sell, aud that by barely scl
ing there " no trcspas or conversion
the factor IL imomnt Of any adyerH
claim n; the time Of sale, and does no
pretend 10 any ownership. II seems I
be good ease 10 10 the Supreme COui
for final settlement, ~ th0t commiEsi0
merchants may understand their risk.
In letter to Judge Hammond. writto
since the opinions we're prepared and sui
mited 10 each other, Judge Jackson Q,
plains that he does not approve Turk VI
Roach at all; that he docs not think
should he followed by the Court, aud tbs
he does not intend by his opinion 10 eve
partially assent 10 is rulings. Judl
Hammond thinks that limited to the sin
pile case Of sale by a commission me
chant Of stolen goods, or goods cmbezzle
by n deiaulting bailee, II u good law, an
that tho merchant would not be liable
without knowledge Of tho wrong, he pal
over the proceeds either before or after u
sale. In such a case ho holds there Is .
conversion by tho commission mcrchan
technically or otIcrwioc, 70 his on use