Toland v. Murray

Headnote

Where M. a merchant abroad, consigned goods to T. for sale for his account, and T. sent them to the defendants for sale; held¡ that the defendants were bound to account to T. for the proceeds, as tneir principal, and could not retain them to Satisfy a demand of their own against M., and that T. might maintain the action in his own name.

THIS was an action of assumpsit, brought to recover the value of goods consigned by the plaintiff to the defendants, to be sold by them, as his factors.

The plaintiff’s counsel, at the trial, stated, that the plaintiff and RichardJ\l. Mead, of Cadiz, owned a quantity of tin. It was proved that early in the year 1813,Mead shipped the tin from Cadiz, consigned to the plaintiff residing in Philadelphia, to be sold for their joint account. The ship arrived at New-York, and the plaintiff sent theinvoice and bill of lading to the defendants, with instructions to sell the tin. The defendants sold, and rendered an account of sales ; but refused to account for the proceeds of 264 boxes, &c. alleged to he the share of Mead, and against whom they claimed the right to set off the amount of a claim against Mead, or to retain it to indemnify them for an alleged violation of a contract between him and J. B. M. one of the defendants.

The defendants’ counsel moved for a nonsuit, on the ground that plaintiff and Mead were joint owners of the tin, and that the suit should have been in their names jointly ; and because, if the plaintiff could be considered as bringing the action for account of Mead, it should have been commenced in the name of Mead, as both plaintiff and defendants were his factors. The Court overruled the motion, and decided, that as between the plaintiff and defendants, the former was to he deemed the sole owner of the whole of the tin, and entitled to bring the action in his own name. And the jury, under the direction of the judge, found a verdict for the’plaintiff.

moved to set aside the nonsuit. 1. It is a well-settled rule, that in all actions arising ex contractu, where the interest is in several persons, all of them, if living, must be joined in the action.

(Dob v. Halsey, 16 Johns. Rep. 34 - — 40. 1 Chitty PI, 6, 7. 1 Saund. 153. n. 1. 291 f, n.)

2. The defendants, as factors of Mead, have a lien on this property. A factor who becomes surety for his principal has a lien on the goods sold by him for his principal to the amount for which he has become surety. (Drinkwaler v< Goodwin, Cowp. 251, 256.) If a factor sells goods in his own name, the vendee may set off any demand he may have against the factor, in a suit brought by the principal. {George v. Claggett,7 Term Rep. 359. andnotes, 360, 361. Houghtonv. Matthews, 3 Bos. and Pull. 485.) The plaintiff did not appear in the character of a factor, but as a joint owner of the goods with Mead.

The injunction bill which was filed to stay the proceedings in this cause admits, that the property in the tin was in Mead. Notice was given to the defendants to produce the original invoice and bill of lading, which they have declined to do ; the Court are then warranted to conclude, that the tin was the property of M. and that the plaintiff was his factor; and having sent it to the defendants for sale, they became his factors. There is no privity between them and M. the principal. A sub-factor cannot , hold goods consigned to him by a factor, for any debt due from the owner. (2 East, 523. Cowper, 251.) A factor cannot dispute the titl» ofhis principal. In regard to-fhe transaction between these parties, the plaintiffis theprin-cipal, and the defendants his factors. This question was considered and decided by the Chancellor, when the case was before him. (3 Johns. Gh. Rep. 569.)