Williams & Mobley vs. Littlefield, 12 Wend. 362

By the Court, Sutherland, J.

The defendants contended in the court below, as they do here, that the plaintiif, as their factor, purchasing for them under their instruction, had no right to impose the conditions upon the delivery of the goods which were imposed, and that he must therefore be considered either as an agent departing from his authority, or as a vendor offering terms of sale; and that in either point of view, the goods were his and at his risk, and not at the risk of the defendants at the time of their destruction, they not having been received, nor the plaintiff’s terms accepted, nor his conduct ratified by the defendants.

Chief Justice Jones, before whom this cause was tried, charged the jury, that if they believed that the plaintiff did not purchase the goods as agent of the defendants, or that the same were not in fact shipped by him for them as their agent, then the defendants were not liable; that this was a question of fact for them to decide; that if they found that the plaintiff acted in the purchase and shipment of the goods as agent for the defendant, then neither the shipment of the goods to his own agents, nor his instructions to them not to part with the possession until security was given, was, under the circumstances of the case, an available ground of defence to the defendants.

In other words, that as agent or factor of the defendants, purchasing and forwarding these goods under the instructions received from them, the plaintiff had a right to send them to his agent at Mobile, with directions not to deliver them to the plaintiffs until paid for or satisfactorily secured, and that they remained, notwithstanding, at the risk of the defendants; or, in still other and simpler terms, that, as purchasing factor, he had a lien on the goods until paid for.

The charge implies, that in point of law there was no violation or departure from his instructions, in the course pursued by the plaintiff, if in point of fact he purchased and forwarded the goods as agent for the defendants, and not on his own account. The verdict simply establishes that the plaintiff intended to be considered as factor or agent in the transact*on> an¿ not as vendor.

Was his conduct warranted by his instructions, and the nature of his agency ? t ^’s very evident that the defendants, when they directed this bagging to be purchased, contemplated a purchase upon time, and that they deemed it important to obtain as long a credit as possible. The plaintiff was particularly requested to make the terms as favorable as possible to the defendants. This obviously related to the credit rather than the price. It was shown upon the trial that this

article was usually purchased in the New-York market upon 4 and 6 months credit, and that this purchase was actually made at six months.

It appears, also, from the defendants’ letter of instructions, that the defendants wished the bagging purchased and forwarded immediately ; and the reason for their solicitude upon this point is given in the testimony of one of the witnesses, who stated that cotton bagging is among the first fall shipments from New-York to the south; that it is usually shipped from the 1st of September to the 1st October; that it was necessary that this bagging should have been immediately shipped from Mobile to Suggsville (having arrived at Mobile on the 18th of October) to be in time for the cotton harvest.

It is very obvious, therefore, that nothing could have been further from the expectations of the defendants than a demand for immediate payment or security, as a condition precedent to the delivery of the article. They were totally unprepared for such a demand.

There was nothing in their previous transactions with the plaintiff which could lead them to expect it; and the nature and circumstances of this particular transaction, as they must have been understood by both parties, seem totally irreconcileable with the idea of a lien on the part of the plaintiff upon the goods, to the extent of the purchase money for which he had made himself responsible.

I do not understand the counsel for the plaintiff to contend for the broad proposition, that a purchasing factor or agent, acting under the orders of instructions given by the defendants in this case, would of course have a lien upon the goods to the extent of the purchase money: they justify the conduct of the plaintiff, as the court below seem to have done, upon the special circumstances of this case; they rely upon the defendants’ want of punctuality in their pecuniary transactions with the plaintiff and others, and suffering their bills to be protested, &c.

The defendants’ want of punctuality was perfectly well known to the plaintiff before he received and undertook to execute this order. It is not pretended that any discovery was subsequently made, tending to impair the plaintiff’s confidence in the defendants responsibility. There was no intervening insolvency. The defendants were then» and for aught that appears are still in good credit at home, transacting their business and meeting their engagements with as much punctuality as country merchants usually do.

If the plaintiff felt it to be unsafe, or for any other reason was unwilling to make further advances, he should have declined the commission, instead of undertaking to execute it upon terms and conditions which had never been imposed or suggested in their previous transactions, and which he must have well known would be a surprise to the defendants, and would probably seriously disappoint and embarrass them.

But again: the plaintiff purchased at six month's credit without interest, and yet claiming to act as the factor or agent of the defendants, exacted from them immediate payment or security at 90 days, charging them at the same time the usual commission. If he purchased as agent, the credit which he obtained was for the benefit of his principals, and unless there was a subsequent insolvency, or some other material change of circumstances, he had no right to deprive them of that advantage.

The authorities referred to have very little application to this case; they relate principally to the doctrine of stoppage in transitu, or to the right of lien of a factor to whom goods are consigned for sale, and not of a factor or agent who is simply commissioned to purchase and forward — and to the distinction between general and particular liens. The doctrine upon all these points is perspicuously and succinctly stated, and most of the authorities referred to by Chancellor Kent in 2 Kent’s Comm., 2 ed. 634, et seq.

He observes that the lien of an agent is created either by common law, or by the usage of trade, or by the express agreement, or parlicular usage of the parties. It is shown in this case that the general usage is against the lien claimed by the plaintiff. No instance is shown in which it was ever before set up, and it is not pretended that there was any express agreement or particular usage between these parties to justify it. A witness called by the plaintiff, on his cross-examination, states what is undoubtedly the actual mercantile practice.

He says, it was the practice of his house, where they entertained doubts of the responsibility of their country correspondent to exact security before delivery; but in such cases, their agents at Mobile were instructed ,to sell the goods on their account, if the person for whom they were designed did not choose to comply with the conditions; that is, they considered themselves as vendors offering terms of sale, and not as factors or agents in such cases.

It is unnecessary to decide in this case whether, upon general principles at common law, a purchasing factor or agent has or has not a lien upon the goods purchased by him until paid for his advances, or secured for the responsibilities incurred by him. The only case referred to, bearing directly upon this point, is that of Stevens v. Robins, 12 Mass. Rep. 180, in which the court say, that by the general principles of law, the factor in that case had a right to keep possession of all the goods purchased, until he should be reimbursed his advances and secured against his liabilities.

Indeed, they observe, such was the express contract between the parties. Conceding however the general principle, it would not, I think, control this case. The terms of the defendants’ order, taken in connection with the evidence, clearly show that the defendants expected the goods to be purchased upon an extended credit, and that their immediate delivery was considered all-important; that the sale for the season would otherwise be lost. There could have been no misunderstanding between the parties upon these two points.

Such, then, was the legal effect of the defendants order ; and the plaintiff in undertaking to exact immediate payment, and refusing to deliver the goods until paid for, if he intended to be considered as factor or agent in the transaction, violated his instructions and made the goods his own; he became in fact a vendor offering terms of sale. There is no evidence to show the defendants’ acceptance of those terms, and the goods therefore, at the time of their de-struclion, were at the risk of the plaintiff, and he cannot recover their value from the defendants.

The judgment of the court below must therefore be reversed.