Maloney v. Jones-Wise Commission Co. , 117 Ark. 180 ( 1915 )

Wood, J.,

(after stating the facts). The court found the facts, as requested by the appellant, to be “as stated in the deposition of Henry M. Wise.” Therefore, if in any view of the facts as stated in the testimony ef Wise the judgment of the court is correct appellant is in no attitude to complain, and the judgment in favor of the appellee as against appellant must be affirmed.

The testimony of Wise would warrant the court in finding that the hay in controversy was delivered to intervener on consignment; that it had advanced the money to Sharpe, the consignor, on account of these particular cars; that under the contract it was to sell the hay and out of the proceeds, after paying the amount of the advancement and the costs and commissions, the intervener was to account to Sharpe for the balance; that the consignor Sharpe held bills of lading which recited that it was to be delivered to his order, and that before the attachment was issued he had endorsed and mailed these bills of lading to the intervener.

(1) On the facts as thus stated, the court was correct in declaring as a matter of law that the intervener had a factor’s lien on the cars of hay in question. The endorsement and delivery of the bills of lading was sufficient at the common law to transfer the possession of the bay to the intervener. Durr, et al. v. Hervey, 44 Ark. 306; Turner v. Israel, 64 Ark. 244. See also, Puckett v. Reed, 31 Ark. 131.

(2) The facts also, as they may have been found by the court, were sufficient to bring the case within the doctrine of May v. McGaughey, 60 Ark. 357, where we •said: “By the common law, a factor and commission merchant has a lien upon the goods of his principal in his hands as security for all advances made to such principal, in connection with the goods consigned.”

(3) Here the advancement made by the appellee to Sharpe, according to the testimony of Wise was not in the nature of a debt contracted without any reference to the business relations existing between them as principal and factor, but the advancement of $500 was made directly with reference to tibe relation between them as that of principal and factor. At least the testimony of Wise fully warranted the court in so finding. But our statute, Kirby’s Digest, chap. 15, p. 295, still further enlarges the common law rule and makes the one to whom a bill of lading has been transferred by endorsement and delivery “the owner of such goods * * * so far as to give validity to any pledge, lien or transfer given, made or created thereby,” etc. So under the facts of this record at the time of the issuance of the 'attachment there can be no doubt that the appellee had a factor’s lien and title to the cars of hay in controversy and the same therefore were not subject to attachment. See Jennings v. McIlroy, 42 Ark. 236-241; Buck v. Bransford, 58 Ark. 289-291. See, also, United States v. Villalonga, Book 23, p. 64, L. C. P. Co. (ed.) U. S. Sup. Ct. Reports, and case note.

The judgment of the court, therefore, in favor of the intervener, dismissing the attachment, is affirmed.

(4-5) The intervener was entitled to a judgment against the Bunch Company, plaintiff in 'the attachment, only for costs and the proceeds of the property in its hands as custodian. The property, under the orders of the court had been taken from the sheriff and put in the hands of the Bunch Company as'custodian and the property ordered to be sold. Where attached property has been sold under the orders of the- court and the proceeds are in the hands of the sheriff or the custodian, in whose hands it was placed by the court’s order, a. judgment can not be rendered in favor of an' interpleader against plaintiff in the attachment for the value of the property. “A judgment for an intervener in .an attachment suit should be for costs and the proceeds of the property in the sheriff’s hands, and not for the property or its value, where the attached property has been sold and the proceeds delivered to the sheriff.” Fly v. Grieb’s Administrator, 62 Ark. 209. See also, Smith v. Lee, 73 Ark. 451.

The court erred in rendering judgment against the appellant for the value of the property, but there is no evidence that the value of the property exceeded the proceeds of the sale. No evidence as to what the value of the property was, therefore the error in this particular was not prejudicial, and the judgment is affirmed.

(6) But the court erred in rendering judgment against the Casualty 'Company, the surety on the attachment bond of the Bunch Company. That bond bound the Bunch Company and its surety, the Casualty Company, to pay “to said defendant the damages which he may sustain by reason of the attachment in this action if the order therefor is wrongfully obtained.” The order for the attachment was not wrongfully obtained. Moreover, the express language of the bond was to pay the damages which the defendant in the attachment might sustain. The object of the bond was to protect the defendant and not the intervener. The law is correctly stated in 4 Cyc. 765, as follows: “It seems that a surety on an attachment bond who undertakes to pay all damages which may be sustained by defendant is not liable for a trespass committed to the property of a third party.”

There was no breach of the bond as the attachment was not wrongfully obtained, and no damages to t'he defendant in the attachment. See Rodde v. Hollweg, 19 Ind. App. 222, 49 N. E. 282; Martin v. Turpin, 57 S. W. 459.

. The court therefore erred in rendering judgment against the Casualty Company, and the judgment as to it is reversed and the cause dismissed.