Blood vs. Palmer, 11 Me. 414

Weston J. Had Briggs been the original owner of the goods he undertook to sell, and had they been purchased by the plaintiff and his partner and left with Briggs to be managed and sold by him, according to the written contract between the parties, the transaction would have afforded very strong evidence of a fraudulent sale. But the goods were not originally his.; and the question is not whether there was a fraudulent sale or not, but whether there was any sale to Briggs.

It was for the plaintiff and his partner to determine, on what conditions they would part with their own goods; and under what circumstances Briggs should be permitted to have possession of them. And it was distinctly agreed, that they should continue the owners of them, and if sales were made on their account, which Briggs was authorized to do, of whatever was received in exchange. The ownership of the goods and of their proceeds, in all their stages was to remain unchanged ; and he was permitted to sell only for ready pay.

He thus became their factor or agent; and upon that condition he was suffered to receive the goods. There is nothing fraudulent or collusive in this mode of doing business ; and it is of common occurrence. He was, it appears, reputed insolvent, and they could not with safety have transferred the property upon his credit. It was part of the agreement that he should be charged with the goods, and credited with what he remitted from time to time. In this mode, his fidelity as agent Would be ascertained.

It cannot be understood from the whole instrument, that he was charged with the goods as purchaser, but as bailee or agent; for he was to receive and hold them in that capacity. By the contract, the business was to be done in the name of Briggs. From his testimony it appears, that the word agent, was appended to his sign over his door; and that it was well known to his customers that he was the agent of the plaintiff and his partner. He further testified, that there was no agreement for any compensation for his services.

The Judge, who presided at the trial, was requested by the counsel for the defendant, to instruct the jury, that these facts constituted a sale of the goods, so far as third persons were concerned. The question whether there was fraud and collusion between the plaintiff and Briggs, of which these and other facts were relied on as evidence, was left to the jury ; but the Judge declined to instruct them, that these facts constituted a sale, or could be treated as such by the creditor represented by the defendant; his debt having accrued prior to the receipt of the goods.

And if the transaction was not tainted with fraud, which the jury have negatived, we are satisfied that they were upon this point properly directed. If the business had been conducted in the name of Briggs, as by the contract he was permitted to do, and his agency had not been known, the goods might have been held under these circumstances, to make good any false credit thus obtained. It has been urged, that the facts being settled, whether fraud results, is a question of law.

Without discussing the correctness of this position, it may be stated, that by the written contract there was no sale; and whether there was, notwithstanding a sale, resulting from the dealings between the parties, which must be made out affirmatively, depended upon other evidence, the truth and bearing of which was properly left to the jury. Many of the cases, cited for the defendant, presented questions of fraudulent sale, sought to be defeated on that ground. Here an attempt is made to establish as a sale, what does not appear on the face of it, to have been so intended. In Marsh v.

Wickham, 14 Johns. 167, a sale of a quantity of leather was clearly made and intended, but qualified with the privilege of returning such portions of it, as might remain on hand at the time of settlement. In Hurd v. West, 7 Cowen, 752, it is decided, that where the bailee contracts to return the property bailed, or deliver property of the same kind and quality, or to do the latter only, the letting is not properly a bailment, but operates as a sale, and the right of the bailor is a chose in action only. And this is in accordance with the opinion of Sir William Jones.

Jones on Bailments, 2d edition, 102, who says “ it may also be proper to mention the distinction between an obligation to restore the specific things, and a power or necessity of returning others equal in value. In the first case it is a regular bailment; in the second, it becomes a debt.” The receiver, having the option to return the identical goods, or others equivalent, those received become his own, to dispose of at pleasure, in the same manner as if he had borrowed a sum of money, promising to return the same amount.

But this rule does not apply to factors and agents, who act throughout in behalf of their principals, although they fulfil their duty, if they pay over the price, for which they may have sold goods, instead of returning the goods themselves. The price received belongs to him who owned the goods. It could never be seriously pretended, that if one man employ another to exchange his horse for a yoke of oxen that-, in the course of the business, either the one or the other would become the property of the agent. It is otherwise, if a party receives the horse of another, promising to return it, or a yoke of oxen.

He receives in his own right, and not as agent. The remedy of the one, and the liability of the other, rests in contract. In the case before us, Briggs was to exchange the plaintiff’s goods for cash, lumber, and country produce, and that there might be no question about the ownership, it was expressly agreed that the goods, while on hand, and whatever was received in exchange for them, should continue the property of the plaintiff.

It appears from the testimony of Briggs, that he took, for the use of his family, such of the goods as he thought proper; and becoming thereby, or in some other way, indebted to the plaintiff and Wells, his partner, in the sum of three hundred and fifty dollars, and still holding their goods, which he continued from time to time to receive, he did on the 15th of May, 1829, mortgage to them fifty acres of land in Blalcesburg, to secure five hundred dollars.

This, together with the agreement made by Briggs with them, in relation to the occupancy of the same land, the counsel for the defendant insisted was fraudulent and void ; and we must understand that the Judge was so requested to direct the jury ; but he instructed them that the foregoing facts, with other testimony in the case, were evidence’ of fraud, all of which he submitted to their consideration. We perceive nothing necessarily fraudulent or unlawful in taking the mortgage. It might be wanted for the security of the plaintiff and Wells.

Briggs was already their debtor for two thirds of the amount secured, and they had just reason to apprehend further delinquency. If the mortgage was lawful, they were entitled to the possession and profits ; and the agreement for the employment of Briggs upon the land, for their benefit, was lawful, if unattended with fraud in fact, upon which the jury have passed. This agreement, which is in writing, and has the same date with the mortgage, is made by Briggs, with the plaintiff and Wells, his partner.

It has no limitation as to time, but the case finds, that the Judge at the trial, was of opinion that it was vacated, by the dissolution of their partnership, in September, 1830. By the terms of that dissolution, the plaintiff became. the assignee of all the debts due the firm, and of every description of partnership property whatever.

Now we do not understand why the dissolution should vacate the contract with Briggs, in relation to this land, any more than any other contract made with the firm ; and why it was not a subsisting and continuing contract,' which might be enforced by the plaintiff, in the name of the firm ; at least as long as Briggs occupied the land. Regarding the contract as subsisting to that extent, which is well warranted by the evidence, the produce of the farm belonged to the plaintiff, and the verdict upon this point is sustained.

But independent of this ground, which is decisive, we think the jury might rightfully draw the inferences, submitted to them by the Judge. It does not appear that Briggs was tenant of the land by the plaintiff’s consent, or that he was permitted to occupy it in any other capacity, than as a hired man. Judgment on the verdict.