Ricards v. Wedemeyer , 75 Md. 10 ( 1891 )

McSherry, J.,

delivered the opinion of the Court.

The appellees, trading as Meyer and Krose of Bremen, Germany, sued the appellants, Ricards, Leftwicli and Company of Baltimore, in trover to recover the value of twenty-five hogsheads of tobacco which the appellees alleged the appellants had converted to their own use. Meyer and Krose, who were dealers in leaf tobacco, gave to M. Driver, of Lynchburg, Virginia, with whom they had had previous business transactions, an order to buy for them twenty-five hogsheads of a particular brand of tobacco called “oblong,” limiting the price to five and one-half cents a pound, packed in hogsheads and delivered at the railroad depot in Lynchburg. Prior to the receipt of this order, Driver had been advised hy his agent in Bremen, that he would likely get it, and he at once began to buy for the purpose of filling it. In February, 1890, when the order was cabled him, he had purchased some of this brand, and had it stored and marked in a particular way to identify it as belonging to Meyer and Krose. On the day following the receipt of the order, he drew on the appellees for three thousand marks, part of the price of the tobacco, forwarded the draft to the appellants, with whom he had been formerly associated in business, and drew upon them for five hundred dollars, against the Bremen draft. The appellants endorsed the draft on Meyer and Krose and had it discounted, and placed the proceeds to the credit of Driver, who was then in debt to them. Meyer and Krose paid the draft at maturity. On March the seventh, Driver again drew on the appellees .for three thousand marks additional, and this draft was discounted by the appellants as the former one had been, and was paid by Meyer and Krose at maturity. The aggregate amount of the two drafts reduced to United States money was fourteen hundred and eight dollars, and this was used, according to Driver’s testimony — which was not contradicted in this particular —in paying for the tobacco bought by him for Meyer and Krose. There was evidence showing that the appellants were aware that the tobacco bought with the proceeds of these drafts was bought for Meyer and Krose. Owing to the scarcity of the crop there was some delay on the part of Driver in filling the order. On May the twenty-second, Driver forwarded thirteen hogsheads of the tobacco, and on tbe twenty-ninth, eleven more by the Richmond and Danville Railroad to A. Schumacher and Company, Bremen Pier, Locust Point, Baltimore, for shipment by steamer to Bremen. Each hogshead was marked with the letter K within a diamond, and the letter B following, to indicate that it was intended for Meyer and Krose, Bremen; which mark the appellants fully understood. The invoice sent to the appellees was for tweuty-four hogsheads Virginia tobacco “bought for order, account and risk of Meyer and Krose, Bremen.” Driver gave the appellants an order on A. Schumacher and Company for the twenty-four hogsheads, and directed Schumacher and Company to make out the ocean hill of lading in the name of the appellants as shippers, to avoid delay in forwarding, and to enable the appellants to attach the hill of lading to the draft on Meyer and Krose for the balance due on the tobacco. When this order was given by Driver to the appellants they knew the twenty-four hogsheads, of which thirteen had then been consigned as just stated to A. Schumacher and Company, were intended for Meyer and Krose, and that Meyer and Krose had paid through the two drafts, heretofore referred to, the whole price of the tobacco except two hundred and twenty-five dollars — which latter sum was still due by them. Under the order from Driver the appellants took possession of the tobacco and held it as the property of Driver, as security for the account current due by Driver to them. Upon their refusal to deliver it to the appellees this action was brought, and a verdict was rendered and a judgment was entered in favor of the appellees for the value of the tobacco less the amount due on it by Meyer and Krose. The appellants offered evidence during the progress of the trial, tending to show that Driver had pledged this tobacco to them in April, and that he gave the order to A. Schumacher and Company in pursuance of that pledge, and not for the purpose testified to by Driver.

It is perfectly obvious that the right of the appellants to the possession of the tobacco in question, if they have any right to- it at all, must have 'been derived by them from. Driver, either by virtue of the pledge of it, or under the order to A. Schumacher and Company directing its delivery to them. If Driver was merely an agent entrusted with an order to purchase, and if he did purchase the tobacco with the money of the appellees for the purpose of filling that order, the tobacco belonged to Meyer and Krose and not to Driver ; and it needs neither argument nor the citation of authorities to show that he had no power to pledge it for the payment of his own deht beyond the extent of his lien upon it. He did not have the tobacco in stock, but he bought it, and he bought it not for himself and not to sell again in the market, hut to fill a specific order and he paid for it with the funds of his principal. As he purchased it he set it apart and marked it, and when packed he placed another mark upon the packages, which both he and the appellants knew was designed to indicate that Meyer and Krose were the owners ; and the invoice which he forwarded plainly expressed that the tobacco was bought for the order, account and risk of the appellees. ' But this is not all. ,The appellants knew the money was obtained from Meyer and Krose for the purpose of buying this tobacco, because the two drafts aggregating six thousand marks drawn by Driver on Meyer and Krose, passed through’the hands of the appellants, and they knew perfectly well what use Driver was making of the money. At the very time they secured the pledge of the tobacco from Driver they knew he had set it apart and marked it as the property of Meyer and Krose. And when they procured the order on Schumacher and Company they were informed the tobacco had been forwarded by rail from Lynchburg for shipment by steamer from Baltimore to Meyer and Krose. With full knowledge, therefore, that Driver did not own or even claim to own the tobacco, and that Meyer and Krose had paid for it (except a small balance of two hundred and twenty-five dollars) they got possession of it and now undertake to hold it as security for Driver's debt to themselves. As Driver could not pledge what was not his, and as the appellants do not and can not claim as bona fide assignees of the bills of lading without notice, they are in no position to assert in themselves either an absolute or a qualified ownership of the tobacco, or a right to the possession thereof against the real owner further than to the extent of the balance clue to Driver by-Meyer and Krose.

Whether Driver be regarded as the mere agent of Meyer and Krose or as vendor is not material, because in either event, the ownership and the right to the possession of the tobacco, as a legal consequence from the facts disclosed in the record, and already stated, vested in the appellees, subject only to Driver’s lien for the two hundred and twenty-five dollars remaining unpaid, and no act that Driver did, either with respect to pledging the tobacco or giving the appellants an order on Schumacher and Company, could operate to divest that ownership or right of possession in favor of parties having full notice of the claims of Meyer and Krose. This is substantially the effect of the instruction given by the Court to the jury. The amount due on the tobacco was tendered by the appellees to the appellants before the suit was brought, and the instruction directed the jury, if they found for the plaintiffs, to abate that amount from the value of the tobacco. The only objection urged against this instruction is that it erroneously assumed that Driver was the agent of Meyer and Krose. But if this was an erroneous assumption — and we think it was not —it did not prejudice the appellants in the least — the result, taking the facts hypothetically stated in the instruction to be true, must have been the same whether Driver was agent or vendor.

The first prayer presented by the appellants was properly rejected, because it submitted a question- of law to be found by the jury. It required the jury to find that the plaintiffs had “a, right to the immediate possession of the identical twenty-four hogsheads of tobacco, ’ ’ instead of submitting hypothetically, for finding by them, the facts from which that conclusion of law was sought to be drawn.

The second prayer of the appellants was equally faulty. It asked the Court to say to the jury that if Driver, whilst the hogsheads of tobacco were in his possession or under his control, delivered them to the appellants as collateral security for his debt to them, then the appellees could not acquire a right to the immediate possession of the tobacco without the consent of the appellants, or unless the appellees first paid to the appellants the entire amount of Driver’s indebtedness to Ricards, Leftwich and Company. This prayer entirely ignored all the evidence tending to show, and in fact showing, that the appellants had full knowledge that Meyer and Krose were the owners, or claimed to be the owners, of the tobacco ; and it permitted the appellants to hold the property as security for Driver’s debt to them, notwithstanding the jury might believe from the evidence that the appellants acquired possession of the tobacco by fraud. It denied the right of Meyer and Krose to recover if Driver delivered the tobacco to the appellants as collateral security for Driver’s own debt to them, no matter how wrongful his act was in so delivering it, a.nd no matter how fraudulent their conduct was in receiving it. In effect it declared that Meyer and Krose had no right to the possession of the tobacco if Driver had pledged it to the appellants, even though that pledge had been fraudulently made, and had been accepted in equally bad faith.

The third prayer asked the Court to say there was no legally sufficient evidence to enable the jury to find that the appellees had, before the institution of the suit, a right to the immediate possession of the tobacco. Apart from other criticisms to which the prayer is open, it is sufficient to observe that there was, in our opinion, quite enough evidence in the cause to establish the right of the appellees to the possession of the tobacco, and the prayer was consequently properly rejected.

(Decided 13th November, 1891.)

As we find no errors in the rulings excepted to, tlie judgment will be affirmed, with costs in this Court and in the Court below.

Judgment affirmed, with costs.