Winslow v. . Fenner

The plaintiff declared in all the common counts, and also upon a written contract, which was as follows:

NORTH CAROLINA — Halifax County.

Know all men by these presents, that we, Fenner Lawrence Co., of the county aforesaid, have this day agreed with John H. Parker and David Gatlin as follows, to wit: That we, Fenner, Lawrence Co., have taken in our possession the stock of goods belonging to the said Parker Gatlin, to be sold on commissions at twelve and a half per cent on the gross amount of sales, the said stock of merchandise to be placed in the storehouse of A. Burgess in the town of Clarksville, Scotland Neck; the said goods to be at the risk of said Parker Gatlin, with the proper care of said Fenner, Lawrence Co.

And if the said goods are not sold by the first day of January next, then the said goods or the remainder thereof are to be delivered over to the said Parker Gatlin, or their order.

The net proceeds of the sales of said goods, after the twelve (566) and a half per cent has been deducted, are to be paid over to Frank E. Winslow, so far as his claims go against the said stock of goods, to be paid as follows, to wit: Cotton at 22 1/2 cents per lb. as per agreement; Federal currency (greenbacks) at the value of the face or par value; and the bank notes of any of the banks of North Carolina at four for one, except the bank of Washington and the bank of Commerce (Newbern) which are to be taken at five for one.

As witness our hands this the 28th day of June, 1865.

FENNER, LAWRENCE CO., D. GATLIN, JNO. H. PARKER. Witness: F. BARROW.

The breaches assigned were (1) selling on a credit, (2) selling to insolvent persons, (3) negligence in collecting, and (4) not paying over money when collected.

It was shown that in 1865 the plaintiff contracted to deliver to Parker Gatlin (above) about $7,000 worth of goods, upon certain terms; that they were accordingly delivered, but that upon the purchasers failing to perform their contract, by consent of both parties and also of Fenner, Lawrence Co., the goods were delivered to the latter upon the conditions mentioned in the above writing; and that Fenner, Lawrence Co. (the defendants) made sales, some for cash, which had in part been accounted for with the plaintiff; some upon credit, a part of this being to persons who turned out to be insolvent; and that a part of what was sold upon credit had been sold to individual members of the firm so selling.

His Honor instructed the jury that the defendants were not liable to the plaintiff for selling upon a credit, or for selling to insolvent persons, or for negligence in collecting; but that they were liable for the (567) net cash received (treating as part of such cash what was due by individual members of the firm).

Verdict accordingly; rule for a new trial discharged; judgment and appeal by the plaintiff. The plaintiff was not a party to the written agreement by the express terms thereof; nor was either of the parties thereto his agent; nor was it for his sole benefit; some one of which things was necessary to enable him to sustain an action thereon. The agreement was between the defendants and Parker Gatlin. The only relation which the plaintiff sustained to it was that, not by any stipulations with him, but by the stipulations of the defendants with Parker Gatlin, the defendants were to pay to him in discharge of his debt against Parker Gatlin whatever amount should be realized from the sale of the goods. The undertaking of the defendants was, that they would do something, not for the plaintiff, but for Parker Gatlin. And for the breach of that undertaking, only Parker Gatlin could sue.

By the terms of the written agreement, the defendants undertook, expressly, (1) to sell the goods, or so much thereof as they could; (2) to pay the proceeds to the plaintiff; and (3) to deliver back the remainder of unsold goods to Parker Gatlin. And it may be that impliedly they undertook (1) not to sell on a credit; (2) not to sell to insolvents; (3) or, if they sold on a credit, to use due diligence in collecting. And it may be that they performed all these undertakings except the payment of money to the plaintiff, to the satisfaction of Parker Gatlin, with whom they made the contract. At least, Parker Gatlin do not complain; and they only can complain. And this we understand (568) his Honor to have charged the jury.

But the plaintiff's claim for money had and received, stands upon a different footing. For it is well settled that if A. consents to receive and does receive money for the use of B., A. thereby becomes the agent of B., and B. may recover it in an action for money had and received.

In so far, therefore, as the defendants agreed to receive and did receive and actually had in hand, money for the plaintiff, to that extent and no further, were they liable in this action.

The plaintiff had a verdict for all the money which the defendants had received for him; and to this he was entitled. He also had a verdict for the amount of purchases by the individual members for which no money had been received; and to this he was not entitled. But the defendants did not appeal, and therefore the verdict must stand.

There is no error.

PER CURIAM. There is no error.

Cited: White v. Hunt, 64 N.C. 498.

(569)