H. A. Prentice Co. v. Page , 164 Mass. 276 ( 1895 )

Morton, J.

The goods which are the subject of these suits were obtained from the plaintiffs by one Gregg by means of false and fraudulent representations and forged conditional contracts of sale. After he had thus obtained the goods, Gregg pledged them to the defendants. Although there is nothing in the report of the presiding justice or in the auditor’s report positively showing that the defendants took them in good faith, it is assumed in the instructions to the jury, and we take it for granted that they did. The H. A. Prentice Company also “ trusted Gregg personally with some two thousand dollars’ worth of merchandise, and charged the same to him in the regular course of business ” ; but it is expressly stated in the report of the presiding justice that none of the goods which are the subject of these suits were ever “ charged to him or purchased by him in any way, but were all delivered to said Gregg upon his representation that he had a reliable customer for them,” and we assume were all accounted for by him by forged conditional contracts of sale. The facts show that there was a larcenous taking of the goods by Gregg, for which he was afterwards convicted and sentenced.

The defendants, in substance,'requested the court to instruct the jury, that if the goods were intrusted to Gregg to sell for cash, or on conditional contracts of sale, the defendants were protected by Pub. Sts. c. 71, although the goods were obtained from the plaintiffs by Gregg by forgery and fraud.

The court refused to give this instruction, and instructed the jury in effect that, in order to protect a bona fide pledgee under c. 71, “ the goods or merchandise in the hands of an agent must have been intrusted to ” the agent, “ to sell and dispose of in the ordinary course of business as a common law sale.”

Without undertaking to say that intrusting goods or merchandise to an agent or factor to sell means under all circumstances such a sale as defined by the court, we think, upon the undisputed facts, that the plaintiffs were clearly entitled to recover, and that therefore the instructions could have done no harm in the present case.

There was no evidence to show that the goods were intrusted to Gregg to sell for cash, and therefore so much of the request as related to that was inapplicable to the case before the court and jury.

The object of Pub. Sts. c. 71, is to protect parties dealing in good faith with factors or agents who have been intrusted with goods or merchandise for sale or consignment. It might be said that goods given, as these were, to one to be delivered by him to parties who he represented had purchased them, were not intrusted to him for sale, but as an agent for delivery merely. But however that may be, we do not think that the statute applies when goods or merchandise have been procured by the agent or factor to be intrusted to him for delivery under what purport to be conditional contracts of sale, in consequence of what in law constitutes a larceny of them on his part. In such a case the goods cannot be said to have been intrusted to him for sale in any manner within any fair meaning of those words. It would be a contradiction in terms to say that goods are intrusted for sale to one who steals them. Stollenwerck v. Thacher, 115 Mass. 224. Thacher v. Moors, 134 Mass. 156. Rodliff v. Dallinger, 141 Mass. 1. Dows v. National Exchange Bank, 91 U. S. 618. Soltau v. Gerdau, 119 N. Y. 380.

If the goods have been properly intrusted to an agent for sale, a party afterwards dealing in good faith with the agent will be protected, though the latter may violate his instructions, or, in disposing of or dealing with the goods, conduct himself fraudulently towards his principal. Michigan State Bank v. Gardner, 15 Gray, 362, 374. But that was not the case here.

In regard to the case of Baines v. Swainson, 4 B. & S. 270, which may seem opposed to the conclusion which we have reached, it should be observed that the English Factors’ Acts (6 Geo. IV. c. 94) simply provide that the goods shall be “ intrusted,” and not, as ours, “ intrusted for sale,” and the fact that they do not provide that they shall be intrusted for sale is adverted to in the argument of counsel and in the opinion given by Crompton, J., pp. 275, 281. See also Cole v. Northwestern Bank, L. R. 10 C. P. 354, 373, 374, where Blackburn, J. says that Willes, J., in delivering judgment in Fuentes v. Montis, L. R. 3 C. P. 268, “ speaks of Baines v. Swainson as going to the extreme of the law.” Judgment on the verdicts.