Hayes v. Campbell

McKee, J.: The case presented for consideration is this : In 1874, E. E. Morgan’s Sons were general shipping and commission merchants, doing business in the City and County of San Erancisco, and engaged in buying and selling wheat, and in chartering vessels for the transportation of wheat from ports of California to ports of Europe, to be there sold by them for account of the owners. In that business they had chartered the ship Charles Murdock, of which the defendant in this action was master and part owner. The ship had proceeded to Vallejo to take on board a cargo of wheat for the charterers, according to the terms of the charter-party. Plaintiff being the owner of the wheat in controversy, forwarded it to Morgan’s Sons at Vallejo, to be shipped to Europe, to be there sold by them for his account. Upon receiving the wheat, Morgan’s Sons placed it on board the Charles Murdock in their own names, and the defendant received it on board, in the regular course cf business, as the wheat of Morgan’s Sons. When lie received it he did not know that it belonged to the plaintiff, or to any other person or persons than Morgan’s Sons; but he knew that they were shipping grain as the agents of the- Grangers or farmers of the State. After the wheat had been placed on board, and the ship had received about half her cargo, Morgan’s Sons became insolvent, broke the terms of their charter-party, and failed to proceed with the loading of the ship. Upon ascertaining that fact, the plaintiff demanded of the defendant the possession of his wheat, but made no tender to him then, or at any other time, of the freight or charges. The defendant refused to deliver the wheat, but was ready and willing to carry it under his charter-party, and the plaintiff brought this action of claim and delivery, in which the wheat was taken from the ship and delivered to the plaintiff. In shipping and relanding the wheat, the [424]defendant incurred no expense. The stevedores who loaded and relanded it were paid by the charterers or by the plaintiff.

Upon the case the Court below found, as a conclusion of Jaw, that the defendant had never acquired any lien upon the wheat, and gave judgment for the plaintiff.

We are of opinion that the judgment is not supported by the findings; for it is apparent that the defendant, in receiving the wheat, dealt with Morgan’s Sons either as owners of the wheat, (Green v. Campbell, 52 Cal. 586) or as agents, having power and authority to ship it and deal with it as their own (Civ. Code, § 2369); and, considered as owners or agents, with power to ship it in their own names, and sell and receive the money for it from the purchaser, the legal conclusion would be the same; for having power to do everything necessary or proper and usual, in the ordinary course of the business of shipping and selling the wheat, (§ 2319, Civ. Code) the plaintiff would be bound by their acts within the scope of their authority. Of course, as factors or agents they had no power to make any irregular transfer of the property consigned to them, or to deal with it in any way outside the usual course of business. An agent with power to ship and sell and receive the money from the purcliaser, has no power to affect the property consigned to liim for those purposes by tortiously selling it, or mortgaging or pledging it as a satisfaction or security for his own debt. The utmost that he could do, in that respect, would be to mortgage or pledge it to the extent of any lien which he might have upon it. (Wright v. Solomon, 19 Cal. 76; Warner v. Martin, 11 How. U. S. 209; subd. 2, § 2368, Civ. Code.)