Lubert v. Chauviteau
Before: Wells
Synopsis
A plaintiff has a right to waive a tort, as against factors, and to bring his action to compel them to account, and for the net proceeds arising from the sales.
The plaintiff may show the manner in which defendants became possessed of the goods, and, though the proof should show that they became possessed of them wrongfully, it will be sufficient to maintain an action against them, as consignees or factors.
The distinction in the form of actions ex delicto and ex contractu was abolished by statute, but the general principles which govern such actions, are retained.
If the plaintiff waives the tort, and sues defendants as factors, they must be considered as acting under his authority, and plaintiff can only recover the net proceeds of sales effected by them, after deducting necessary charges and commissions.
It is error to admit evidence of the value of the goods sold in such action, where no charge is made of fraud, non-performance, or negligence. The strict measure of damages in such case, is the net proceeds of sale.
It was error to reject the books of the defendants, offered to prove the account of the sales.
When the defendants were sued as factors, it was not necessary to set forth in their answer, their claim for disbursements, commissions, &c., by way of set-off.
And in such action it was error for the court to charge the jury, that it was for them exclusively to say what amount the plaintiff was entitled to recover, and that defendants were liable for the value of the goods at the time of demand made.
The opinion of the court was delivered by
Wells, Justice, Heydenfeldt, Justice, concurring.
The first assignment of error is, that the evidence does not support the contract as laid in the complaint, and therefore, that the court erred in refusing to order a nonsuit.
The plaintiff in the court below waived the tort (if any had been committed), and brought his action against the defendants as' factors, to account for goods sold by them, and to restore the amount of the net proceeds arising from the sale. This he had a right to do, according to well-established principles of the common law, and it was competent for him to introduce evidence showing the manner in which the defendants became possessed of " the goods ; and although the proof should establish the fact that the defendants became possessed of them wrongfully, it would still be sufficient to maintain an action against the defendants as consignees or factors for the net proceeds.
One of the objects sought by the reformation in the forms of [463]pleading was to provide for cases like the present. The distinctions in the form of actions ex delicto and ex contractu are abolished, and one form of action only substituted, and the plaintiff here has brought his action in the form prescribed by the. code ; but the principles of law which govern the case remaining unchanged, he introduced testimony to maintain llis action as he would have done under the common law system of practice in an action of assumpsit, based upon a similar state of facts; and the court committed no error in refusing a nonsuit, either on the ground of variance or insufficiency of proof, to sustain the complaint.
But the plaintiff having elected to proceed against the defendants as factors, instead of tort feasors, he thereby ratified the act of his agents, Hugens Brothers, in transferring the merchandise and the bills of lading into the hands of the defendants,” and the defendants, who were commission merchants, as shown by the complaint, must be considered as acting as the authorized consignees and commission merchants of the plaintiff, and entitled to the rights and benefits arising from this relation. It follows, that the plaintiff could only recover from the defendants the net proceeds arising from the sale and disposition of the merchandise; after deducting the necessary charges and disbursements, and ‘ the court erred in admitting proof of the value of the goods at the time of the demand and refusal to deliver.
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