Wright v. Ames , 2 Keyes 221 ( 1865 )

Davis, J.

When the defendants drew their orders on the Empire Elevator for the delivery to Ames & Sloan of 2,624 bushels of the cargo of the S. J. Holley, and 1,000 bushels of the cargo of the northern Belle, there was none of the latter, and but 476 bushels of the former remaining in store. The deficiency had long previously been surreptitiously taken out by Wm. Lewis ; and Bathbun & Lewis, the owners of the elevator, committed an additional fraud by delivering to Ames & Sloan, who were the agents of defendants, 3,150 bushels of the wheat of J. & I. Lewis.

There was no pretense of a sale of this wheat, for a valuable consideration, to "defendants. It was delivered to them simply as a part .of the wheat which they held as security for the indebtedness of William Lewis, and not upon a purchase and sale from Bathbun and Lewis or William Lewis, nor upon any new consideration whatever. Ames & Sloan received this wheat to sell on commission for defendants, and, having sold the same, paid over the proceeds to them. It is difficult to conceive any principle upon which this process can be held to have changed the ownership of the wheat. Grant that defendants were in total ignorance of the fact that the wheat delivered was the property of J. & I. Lewis, their want of knowledge, and consequent innocence of design to obtain that wheat, could have no effect upon the title. The wrong which injured them had long before been perpetrated, and its consequences are not to be shifted on to other shoulders because dishonest warehousemen have delivered to them the property of others where they demanded their own.. Nothing but the assent of J. & I. Lewis that their wheat might be substituted and delivered for that wrongfully taken could have the effect to change the title of the property. The referee has failed to find any such assent, but, by his conclusions of law, if not by any express- finding of fact, has necessarily negatived its existence. But it is argued, in substance, that,, from the facts found, the law, by necessary ■ implication, declares this assent, and, consequently, the legal conclusion of the referee is wrong. To this position the point must be reduced, because the defendants failed to ask for any express finding in their favor on this question, and to except to any omission or refusal so to find.

The fact out of which this implication must grow, if at all, is, that William Lewis was a member both of the firm of J. & I. Lewis, and of the firm of Rathbun & Lewis, and it must be established that the act of the latter firm, though greatly to. the prejudice and injury of the former, derives the impress of their assent from this relationship of William Lewi's- to both firm's. It nowhere appears that William Lewis acted personally in the delivery of the wheat in question, nor that he assumed to act as a member of or on behalf of the firm of JV &: I,. Lewis in such delivery. On the contrary the- findings, indicate that the wheat was delivered by Rath bun & Lewis,, and the evidence shows that the delivery was made by the servants of that firm without the personal intervention of William Lewis. Every member of a firm is in a certain sense the general agent of the firm; but it has never been held, I think, that every firm is the agent, general or special, of every other firm of which either of its members is also a member. Such a doctrine would be no less novel than dangerous, and should not be announced.by this- court without a clear line of authority requiring it. When, therefore, Rathbun & Lewis' assumed to deliver the property of J. & I. Lewis to make up a deficiency which their wrongful act had created, that/ firm were not agents of the owners of the property without an express authority. The law could imply none from the fact that one of their members was also a partner in the firm of J. & I. Lewis, because, in making the delivery, they acted as a firm standing upon its own rights, and not as agents of another copartnership; because as a firm they were not members of the owner’s firm; and because the individual who was such member did not assume to act on his own behalf, nor upon the agency for the other firm, which his relationship to them conferred upon him.

We are not, therefore, in my judgment, called to pass upon the question as to what would have been the effect, if Wm. Lewis had taken the wheat of J. & I. Lewis from the firm of Rathbun & Lewis, and delivered it to defendants on his private indebtedness; for no such state of facts is found or proved. Even in that case it would be difficult to uphold defendants’ title, whatever rights equity might secure to them in the ultimate interest of William Lewis in the property. (3 Kent, 40; Story on Agency, § 124; 1 Bouvier’s Inst., 104; Colly, on Part., § 503; Story on Part., § 133 ; Ryer v. Batchelor, 12 Peters, 229 ; 3 Pick., 54; 16 Johns., 38.)

The defendants also insist that J. & I. Lewis ratified the act of delivering their wheat to apply on William Lewis’ debt to them, by the settlement of their account and the payment of the balance claimed against them. Here also the defendants are embarrassed by the fact that the referee has not only failed to find such ratification, and was not requested to find it, and an exception taken to his refusal; but also by a pretty distinct express finding and a necessarily implied one-the other way. Certainly the referee could have given no judgment against defendants without necessarily holding that the act of applying the wheat to William Lewis’ debt was not ratified by J. & I. Lewis; and, as this court is to uphold judgments by intendment when not contrary to facts found or proved, it would be going far to say that we should spell out a ratification from any evidence in this case in order to overturn the judgment. Besides, the referee has found the facts (which he mistakenly states as conclusions of law) “ that there was no appropriation of the avails and proceeds of the sale to the credit of William Lewis, or to any purpose, by the authority of J. & I. Lewis, or by any agency binding on them,” and “ that the application of the moneys realized from the sale of the wheat to the payment of the debt of William Lewis was unauthorized and in fraud, of the rights of J. & I. Lewis.” ■

. The settlement was obviously made, I think, for the purpose of bringing the matter to a point where J. & I. Lewis, or their assignee, could demand the wheat or its proceeds discharged of any lien of the defendants; and there was no intent on the part of either party to cut off the claim, as it would have been inequitable to have done. It is not necessary or profitable to pursue the idea of ratification further.

The point that defendants should at least have been allowed to retain the supposed interest of William Lewis in the proceeds of the wheat is abundantly answered, I think, by the views above suggested, on the question whether he, either personally or as a member of the firm of J. & I. Lewis, transferred any such interest to defendants. LTo tortious act of Rathbun & Lewis could make the defendants joint • tenants or tenants in common of J. & I. Lewis in property wrongfully converted; and hence this question is already sufficiently disposed of. Besides, it was not urged or raised below; and this court has repeatedly held that it does not sit to instruct parties as to how their causes could have been better tried.

I think the judgment should be affirmed.

Poetee, Pottee, Oampbell and Beowtt, JJ., concurring,

Judgment affirmed.