Bott v. McCoy , 20 Ala. 578 ( 1852 )

DARGAN, 0. J.

The cotton sued for was received by William Bower & Co., as commission merchants, from the planters who raised it. Bower & Co. stored the cotton with the defendants, Holmes & Bott, who were warehouse keepers, and it was entered on the books of the warehouse in their name. Shortly afterwards Bower & Co. obtained an advance of money for their own benefit from McCoy & Johnson, and pledged the cotton as a security for its payment. They gave to Johnson & McCoy an order for the cotton, which being presented to the defendants, they recognized the title of the plaintiffs, and their clerk executed to them a receipt showing that they undertook to hold the cotton for the plaintiffs, who agreed to pay the storage. After this, Bower & Co. sold the cotton to Tarleton & Scott, and gave them also an order for its delivery. The defendants recognized the title of Tarleton & Scott, and delivered them the cotton, which was re-stored with the defendants on the same day. The plaintiffs demanded the cotton of the defendants, but they refused to deliver it; whereupon this suit was brought whilst they held the cotton as the property of Tarleton & Scott. The question of law which we propose to examine arising on these facts is, which title is to be preferred, that of the plaintiffs, or that of Tarleton & Scott.

The principle cannot be doubted, that a factor or commission merchant is not authorized by law to pledge the goods of his princpal for his own use. The party receiving such a pledge and advancing his money, acquires no title as against the principal. Nor is it material in such a case, whether the pledgee knew that be was dealing with a factor or not; if be knew the fact, be was bound to know that by law the factor bad no authority to pledge the goods of bis principal; if be did not know that the person with whom be was dealing was a factor, still bis want of knowledge of this fact could not extend the authority of the factor. Story on Agency, § 225, and cases there cited. As such an act is not within the ordinary powers of a factor, it is clear that it cannot work a divestiture of the title of the principal; and be may pursue the goods in the bands of the pledgee, or may bring trover against both the pledgee and factor, or either of them, at bis election. Story on Agency § 487.

But this violation of the factor’s authority is injurious to the rights of the principal alone; he may ratify or confirm the act at bis pleasure; and if be is content therewith, no one else can complain. Certainly it would be contrary to all rule, to suffer the factor himself to allege his own tortious acts as a ground for setting aside the contract. He cannot bring tro-ver or detinue in his’own name, and recover of the pawnee the goods, on the ground that he had tortiously violated his authority, and thereby injuriously affected the rights of his principal. I apprehend that no case can be found, where a trustee or a bailee, who has converted the goods intrusted to his care, has been allowed to recover the goods from his ven-dee, on the ground that he had violated his authority in making the sale. But on the contrary, every one who undertakes to transfer goods, whether it be by way of pledge or sale, impliedly stipulates that he has the authority or the right to do so; and he must be held estopped by his act, and cannot and ought not to be allowed, to allege his own violation of authority to set aside the transfer, or to recover the goods. This principle of law has frequently been recognized by this court. In the case of Pistole v. Street, 5 Porter, 64, an administratrix having intermarried, her husband sold a slave belonging to the estate of the decedent, without authority from the County Court, and after the death of her husband she brought suit against her husband’s vendee, to recover the slave, on the ground that he was sold without authority. But this court held, that the act of her husband must be considered as her own ; and although the creditors and- distributees were not without remedy, yet sbe was estopped, and could not set up ber want of authority to sell. Again: in the case of Fambro v. Gantt, 12 Ala. 298, it was held, that though no title passed to the purchaser by a private sale of the property of an estate by the administrator, yet the administrator was estopped from recovering it in his own name.

These authorities, as well as the principle on which they rest, to my mind are conclusive, to show that Bower & Co. could not recover the cotton from McCoy & Johnson; for they cannot set up their own tortious act on the rights of a third person, to set aside their contract. As to them it is valid, and their principal alone, who was injured by it, can set it aside. The necessary sequence from this proposition is, that if Bower & Co. cannot themselves recover the cotton of McCoy & Johnson, they cannot by a sale in their own name enable another person to do so. This would be to allow them to do through another, what they could not do themselves. The cotton was in the possession of the plaintiffs at the time of the sale to Tarleton & Scott, and by virtue of a contract that gave them a good title as against Bower & Co.; the sale to Tarleton & Scott was in pursuance of the original authority which Bower & Co. had abused; but so far as the record discloses, the planters to whom the cotton in fact belonged, have not complained; they may be content with the transfer by way of pledge. Under such circumstances, neither Bower & Co. nor any one claiming under them, can allege the injury done to the owners of the cotton, by a tortious violation of the authority intrusted to Bower & Co., to set aside the contract by which McCoy & Johnson obtained the possession of the cotton. We will not say that the owners of the cottonf might not in their own name have sold it, and thereby ena-f bled their vendee to recover. B.ut we feel assured that Bower & Co. could not, by virtue of their original authority, sell in their own names, and enable their vendees to set aside a con-1 tract which was at least binding on them. We therefore come to the conclusion, that the title of McCoy & Johnson is superior to that of Tarleton & Scott. They both originate from the same source, to-wit: from Bower & Co.; and the title of .the plaintiffs is valid against all the world, except as against the original owners of the cotton, who alone were injured by tbe tortious act of their factors. But as .they have not complained of it, no one else can. .

This view of the case renders it unnecessary, to examine in what cases, and under what circumstances, a bailee may defend himself when sued by his bailor, to recover the goods intrusted to his care, by interposing a superior title in another which he, the bailee, has recognized.

It is however insisted, that the facts agreed upon would warrant the inference, that Bower & Co. were acting as the agents of McCoy & Johnson in making the sale to Tarleton & Scott. It is a sufficient answer to this to say, that where the facts of a case are agreed upon, and the questions of law alone are submitted to the court for its judgment, we can only respond to the questions of law arising upon the admitted facts. The inference of one fact from another is a question of fact, and not of law, and this inference must be drawn by a jury; and it would be traveling out of the province of the court, as well as of the agreement in this case, if the court was to infer another fact, and pronounce the law arising thereon.

It was also shown, that Bower & Co. paid to the plaintiffs a considerable portion of the money received' from Tarleton & Scott on the sale of the cotton, upon an account due by them to the plaintiffs anterior to the pledge of the cotton; but the plaintiffs were ignorant of the source from whence the money came at the time they received it. On this evidence it was contended, that the act of the plaintiffs in receiving the money ought to be construed as a confirmation of the sale, or at all events, as a credit upon the amount they otherwise would be entitled to recover. But as the plaintiffs did not know that the money paid to them was part of the proceeds of the cotton, they did not, by receiving it, confirm the sale to Tarleton & Scott; and as the amount received by them was credited upon a prior indebtedness, the amount they advanced to Bower & Co. upon the cotton is still due them.

In view of all the facts, we see no error in the judgment, and it must be affirmed.

Note. — 1A re-hearing was granted in this case, and the following opinion afterwards delivered:

PER CURIAM. — This cause has been xe-argued, and we are satisfied that the principle of law pronounced in the opinion is correct. In reference to the question of fact, whether Bower & Co. were not the agents of McCoy & Johnson in making the sale to Tarleton & Scott, we will' only add, that when the judge is substituted, by consent of the parties, in lieu of the jury, we will not revise his judgment upon the facts. If the evidence be conflicting, and he decides against the weight of testimony; or if it would have justified an infer-, ence of fact which the court refused to draw, we will not reverse his judgment, merely because we could, or might have come to a different conclusion of fact. Etheridge v. Malempre, 18 Ala. 565.