Goldsmith v. Manheim , 109 Mass. 187 ( 1872 )

Chapman, C. J.

Manheim employed Goldsmith & Son, who were forwarding and commission merchants at Charleston, to send his cotton to Liverpool, cause it to be sold there and have the avails transmitted to him, through Locke, their Boston partner, but without giving more specific instructions. He thus authorized them to transact the business in accordance wi th the ordinary usages of trade. Story on Agency, §§ 77, 86, 96. They drew three bills of exchange on Bruce, Simpson & Company, their agents at Liverpool, at sixty days after sight, for the avails, and the acceptors failed before the maturity of the second bill. Manheim asked the court to rule “ that, by drawing these bills and putting them into circulation, Goldsmith & Son made themselves responsible to Manheim for the money, although the acceptors failed at the time of the protest of the second bill; and that such proceedings were equivalent to a loan of Manheim’s money.” But the court declined so to rule, and did rule “ that it was a question of fact for the jury whether or not there had been any loan of Manheim’s money; that a loan thereof would not be justifiable ; but that, if in the absence of an express agreement as to the transmission of the funds the bills were drawn and put in circulation according to the usual course of business in the trade, then such proceedings were no breach of duty on the part of Goldsmith & Son, acting as Manheim’s agents, and did not make them responsible for the money lost by the failure of Bruce, Simpson & Company to pay the bills.”

It is now contended thatythe question whether there was a loan of Manheim’s money was a question of law, and could not properly be submitted to the jury. But there does not appear to have been a lending of the money, unless it consisted in some departure from the usual course of business in the trade. This was a question of fact, and was properly left to the jury. There was evidence on that point offered by Goldsmith & Son and not contradicted, and the finding of the jury is conclusive.

It is further said that if there was such usage it was unreasonable. But there is nothing in the facts of the case, as stated in the bill of exceptions, to support this position.

The last bill was drawn for the balance due for the cotton, together with some other balances due to Goldsmith & Son from Bruce, Simpson & Company. It is contended that this intermingling of funds was an appropriation of the money of Manheim to Goldsmith & Son. But the fact was immaterial. Manheim would be entitled to no part of the money till the bill was paid,' and if it had been paid there would have been no confusion of property. A certain sum would have been due to Manheim, but not due in specific money; and the amount could be easily ascertained. But the draft was not paid, and the amount of it did not contribute to cause the loss. It is sufficient that the usages of business were observed.

Exceptions overruled.