
    Julius G. Huguenin vs. Legare & Colcock.
    
      Factors — Mistalce—Insuring.
    Where factors, tinder a clear mistake as to the law, wrote to their principal that they had sold his cotton, when in fact there was a mere agreement to sell not binding under the statute of frauds, and authorized him to draw by reason of the sale — he having previously expressed a wish that his factors should never advance for him — and the cotton having been burnt the next day, again wrote that they had sold the cotton and that it belonged to the purchaser at the time it was burnt: Held, in an action for the value of the cotton sold, that the factors were not liable to their principal.
    The factors held not liable for not insuring, the jury finding upon doubtful evidence that they were under no agreement to insure.
    BEFORE WARDLAW, J., AT CHARLESTON, JUNE TERM, 1857.
    The report of bis Honor, tbe presiding Judge, is as follows:
    “Assumpsit by a planter against factors, to recover for fourteen bales of Sea Island Cotton, which were sent by the former to the latter for sale, and. were accidentally burnt in store without insurance.
    
      “ In several counts, the plaintiff claimed money for cotton sold, money received by defendants for his use, and damages for the defendants breach of their undertaking to procure insurance.
    “A summary statement of the case exhibited by the evidence is as follows:
    “ The defendant, John Colcock, before 1848, and from that time until 1852, conducted a factorage house in Charleston alone; in 1852 and afterwards, the defendant, James Legare, was his partner." The plaintiff’s business was divided between tbis bouse and. another. In all tbe time from 1843, till January, 1854, there were sold in this house, of the plaintiff’s cotton five hundred and twenty-three bales, amounting to fifty-five thousand dollars.
    "Before 1852, Colcock never kept any general policy of insurance, nor ever procured insurance of any cotton sent to him without special instructions from the owner. .After 1852, Legare & Colcock usually kept a general policy, by which cotton, to the amount of thirty thousand dollars was insured, and which within that amount might have been applied to cover the loss of any cotton burnt in their possession.
    "In January, 1853, the defendants had on hand a lot of plaintiff’s cotton, consisting of- bales; before its sale they received, February 5, 1853, twenty-four bales more; 1854, March 14, they sold twelve bales; 1855, January 14, plaintiff sent thirty-five bales to them; 1855, March 4, ten bales more, stained; 1855, December 8, fourteen bales, (now in question;) 1855, December 23, nine bales; 1856, January 6, eleven' bales were sent. The evidence particularised no more. In the accounts of sales rendered to the plaintiff, insurance was charged upon the twelve bales sold in March, 1854, and upon the thirty-five bales sent January, 1855, and sold March 4, 1855; but no other charge for insurance appeared. The defendants showed that, even when they had a general policy of insurance, some of their customers choosing rather to run the risk than pay insurance, were not charged insurance, and that the account sales of thirty-five bales, March, 1855, was made out by a clerk somewhat inexperienced and inaccurate, who had in other instances inserted the charge for insurance in accounts rendered to customers, who, as he had been instructed, were not to be charged insurance ; but the plaintiff showed that the account as to the thirty-five bales was copied by another clerk, experienced and confidential, and that both accounts were transmitted under cover of letters written by Mr. Colcock, one of the defendants.
    “ The fourteen bales sent 1855, December 8, were in two or three days received by the defendants, and they directed-the wharfinger of Commercial wharf to store them. The wharfinger stored them, 11 December, 1855, in an old brick store-house, ordinarily used for storing cotton; and in the night of Saturday, January 5f 1856, this store-house took fire from some cause unknown, and it, and no other building, was burnt. All the cotton then in it was burnt too; about two hundred and fifty bales; amongst which were the fourteen bales in question; eighteen bales belonging to the defendant Legare; fifteen belonging to members of Ms family, and various parcels belonging to fourteen or fifteen customers of the defendants. '
    “The defendants paid all of their customers for cotton lost, except the plaintiff and a sister-in-law of Mr. Legare’s. Their policy had expired several months before the fire, and had not been renewed.
    “ On Thursday, January 3d, 1856, Mr. Colcock offered the fourteen bales to one Morse, a transient but responsible cotton speculator, who made a bid on it, the first bid that had been received for it. Later in the day, R. H. Colcock, nephew of the defendant C., and chief clerk of the defendants, offered to take Morse’s bid, and Morse said he would take the cotton. Next day, Friday, bills of sale were made of this cotton to Morse, and of nine other bales of plaintiff’s cotton sold in like manner to Green, and these bills were, as usual, copied into the books of the defendants. The bill for Morse was put on file in the office of the defendants, where Morse, having no office in Charleston, had requested that bills for him should remain until he called. A previous sale had been made to him by the defendants, and the same course had been taken. Of this cotton no order to the wharfinger, or other evidence of ownership had been delivered to Morse; be bad paid nothing, and bad received nothing. It is not the usage to give an order on the wharfin-ger before the purchaser desires to remove the cotton — the order then given is dated of the day of sale. But it is usual to re-weigh cotton if the purchaser desires it; and E. H. Colcock testified that, in this instance, Morse had the right to re-weigh, and to examine the conformity of the cotton to the samples which were exhibited to him.
    "Monday of Tuesday after the fire, Morse declined to receive the bill, saying that he would stand a lawsuit, and that he had requested-the bill to'remain with the defendants on purpose to avoid responsibility until the cotton was shipped.
    
      “ Green paid for his cotton, which had been burnt too.
    “ The defendants, January 11, 1856, commenced an action against Morse, making the present plaintiff, plaintiff there.
    January 4, 1856, the defendants addressed to plaintiff a letter, dated, by mistake, December 4,1855, in these words:—
    Charleston, December 4th, 1855.
    “Julius G. Huguenist, Esq.
    “Dear Sir: — We sold this morning your nine bales Fair, at twenty-nine cents, to James E. Green & Son, and your fourteen bales G., to E. J. W. Morse & Co., at thirty-four cents. As soon as these cottons have been examined and re-weighed, we will send you the account sales. In the meantime, if you desire it, you will please draw on us for what funds you may require.
    Tours very truly,
    (Signed.) LEGAEE & COLCOCK.
    ,14 Bales G.
    “ 375, 368, 369, 386, 356, 370, 370, 375,375, 356,383,366, 403, 338, at thirty-four cents per pound — one thousand seven hundred and sixty-four dollars and sixty cents.
    ■ “ A few weeks after the fire, the plaintiff and the defendant C. had a conversation in Charleston, in the presence of. Ool. Drayton. The plaintiff complained that C. had paid other persons for cotton burnt, and would not pay him. C. said, “You never told me to insure your cotton.”' Plaintiff —“ I tell you to do it now.” Plaintiff said he was entitled to be paid, as “ you have charged me insurance.” C. — “ I did it once, and that by mistake.” Plaintiff — “ You know my father-in his lifetime did my business in town. He never ordered his cotton to be insured, and I didn’t mine. He thought it cheaper in the long run not to insure.”
    
      “ After plaintiff’s return hpme, he wrote a letter to defendant, dated January 24, 1856, in which he spoke of two accounts he had found, in which he was charged insurance.
    “The defendants answered, January 25, acknowledging' the accuracy of the plaintiff’s discovery, and saying that the cotton was Morse’s when burnt; and if the case commenced against him should be decided in his favor, the defendants would consider their obligation, with a sincere desire to do justice.'
    “ The plaintiff having been advised by Mr. Petigru, that the suit against Morse could not be maintained, and that the defendants could sue Morse in their own names, was unwilling that the suit'which had been commenced should be carried on at his expense, and directed it to be discontinued. It was discontinued, and this suit commenced.
    “Besides the letters above mentioned, the defendants exhibited letters from the plaintiff to them: four dated in 1853, nine in 1855, and one January 6, 1856. The last mentioned gave information of eleven bales of Grodley cotton sent. Sale ordered, as plaintiff needed funds by the middle of January. This cotton was sold February 8, 1856, and insurance charged, according to the instructions given in the presence of Col. Drayton. Most of these letters contain urgent instructions for sale. January 31, 1853, plaintiff says, ‘ I have never derived any benefit from holding cotton.’ February 5, 1853 : ‘ Sell immediately on arrivaltwenty-four bales then sent. February 6: £ Sell immediately, on receipt of this, cotton you may have in hand, without delay. The twenty-four bales sell on arrival.’ February 11: ‘ Sell immediately. Let me have account sales by return of mail. I never wish factors to advance for me.’ January 14, 1855: Thirty-five bales sent: ‘ Sell immediately upon its receipt.’
    “ January 17 : ‘Want thirty-five bales sold immediately, as funds wanted to buy negroes.’
    “ January 18: Negroes bought. 1 Can I draw for one thousand dollars, before cotton sold ? I hope cotton sold ?’
    “ February 11: Sell at twenty cents. ‘ Pay bills, and deposit balance.’
    “ March 4: 1 Conclude it is best for you to sell for the best price it will bring. Ten bales sent. Sell soon as landed for what it will bring. Close sales immediately.’
    “ March 11: Account sales of thirty-five received, ten not sold. 1 Close sales immediately upon the receipt, of this.’
    “ December 8, 1855 : Fourteen bales of Owen’s cotton sent, marked G-. ‘You will please give me your opinion on it, and make an early sale.’
    “ December 23: Nine bales sent: ‘ I must be in funds early in January. Endeavor to effect an early sale of my cotton on hand.’
    “ December 30, 1855. — ‘ Sell the two lots of cotton on hand. I wish to be in funds by the 8th or 10th of January, at which time I expect to be in Charleston to meet my engagements.’
    “ There was testimony that it was often impossible to sell cotton without storing it.
    ’ “ The facts of the case were submitttd to the jury. The question of fact which I thought most worthy of attention was tbis: — Did tbe circumstances shown by the evidence authorize a just expectation on the part of the plaintiff that the cotton, subject of this suit, would be insured by his factors, or, in other words, did these circumstances establish an implied agreement of the defendants to procure insurance of the cotton ? Both forms of the question, in my opinion equivalent, were repeatedly used, — the former more frequently, because it coincided with the -plaintiff’s expression in his letter of January 27, 1856, and with the phrase which was adopted at the bar in the argument.
    “ Did the defendants agree, sale or no sale, to be answerable for a certain sum, was another question which, if decided in the plaintiff’s favor, must have carried the case for him:— but the letters and argument, mentioned in the first ground of appeal, did not incline my opinion on this question to the plaintiff’s side, — much less did they induce me to hold that upon law, without regard to facts, the decision must be for the plaintiff. If there was no valid sale of the cotton to Morse, (as I thought there was not, under the statute of frauds,) the defendants’ letter of January 4, 1856, by reference to examination and re-weighing showed that the term “ sold” had been misapplied to an incomplete transaction; and I could not venture to say, without the aid of the jury, that instructions of the plaintiff given more than two years before, were so present to the mind of the defendants when they wrote this letter, that their unlimited offer of credit to the plaintiff in thp meantime, between the letter and the completion of the sale, should be construed into an agreement to be answerable, in all events, for a certain sum. The inference from this letter, which the plaintiff insisted on, I submitted to the jury : — and this letter, as well as the charges of insurance, various extracts from other letters, and circumstances noticed on either side, I directed attention to ; in reference to what I considered the main question, as before stated.
    “ The jury found for the defendants.”
    
      Tbe plaintiff appealed, and now moved tbis Court for a new trial, on tbe grounds :•
    1. Because tbe letter of 4th January, 1856, from Legare & Colcock to tbe plaintiff, announcing tbe sale, of tbe cotton and authorizing bim to draw, taken in connection witb tbe letter of plaintiff to Legare & Colcock, of lltb February, 1853, in ¡wbicb be says that be does not wisb tbem to advance to bim unless they bave funds of bis in bands, authorized tbe plaintiff to regard tbe sale as concluded, and made tbe defendants liable to bim whether their sale to Morse was complete, or not. Whereas bis Honor charged tbe jury to tbe contrary thereof.
    2. Because it was proved that in two instances in 1854 and 1855, tbe defendants bad charged tbe plaintiff witb insurance, and that tbe plaintiff bad allowed and paid tbe same; and tbis was equivalent to an express direction to insure.
    3. Because bis Honor said to tbe jury, that if they thought tbe two charges of insurance raised a just expectation on tbe part of the plaintiff that be would be insured thereafter, they should find for tbe plaintiff. Whereas, it is submitted that the instruction should bave been, that these two charges, made and allowed, did raise an implied assumpsit or obligation to insure thereafter, without reference to what tbe plaintiff expected or did not expect.
    4. Because if tbe charges of insurance were by mistake, it was tbe mistake of tbe defendants ; and if tbe general policy taken out by tbem in 1855 was allowed to expire, it was their default, and tbe responsibility should rest in law where tbe mistake and tbe default were.
    5.Because tbe verdict was contrary to law and evidence.
    
      
      Porter, for appellant,
    cited Story on Ag. 123 ; Lefever vs. Lloyd, 5 Taun. 749 ; 1 Li verm, on Ag. 401; Obit, on Oon. 18; 1 Parsons on Oon. 69; 2 Wash. O. O. E. 132; Euss. on Factors, m. p. 270.
    
      De Treville, contra,
    cited Paley on Ag. 17, 19; 6 East, 614; 2 East, 471, n ; Paley on Ag. 7; Story on Ag. 123.
   Tbe opinion of tbe Court was delivered by

Withers, J.

Tbe plaintiff’s claim was founded upon fourteen bales of Sea Island cotton, sent to tbe defendants, as factors, on tbe 8tb December, 1855, received in two or three days by them, stored by tbe wharfinger, and burned on tbe night of Saturday, January 6, 1856.

Of three counts in tbe plaintiff’s declaration, one is for money bad and received to tbe plaintiff’s use, which, being wholly unsupported by any proof, may be laid out of view.

One other count is for- tbe value of tbe fourteen bales of cotton sold by tbe defendants.-

It is earnestly contended that this count is sustained by tbe evidence. We must, therefore, examine that question.

On tbe 4th January, 1856, tbe defendants addressed a letter to tbe plaintiff, saying as follows: “We sold this morning your" nine bales fair at twenty-nine cents, to James F. Green & Son; and your fourteen bales G. to E. J. W. Morse & Co., at thirty-four cents. As soon as these cottons have been examined and re-weighed, we will send you tbe account sales. In tbe mean time, if you desire it, you will draw on us for what funds you may desire.” A list, containing weights of tbe fourteen bales respectively, was enclosed, footing up, at thirty-four cents per pound, seventeen hundred and sixty-four dollars and sixty cents.

Again, on tbe 25tb January, tbe defendants said, in a letter to tbe plaintiff, “ as your agents we sold your cotton to Mr. Morse before tbe fire, and it was bis cotton and not yours, when it was burnt, and be owes you for it; but as be refuses to pay we have ordered bim to be sued.” They did sue bim in tbe plaintiff’s name, and be ordered tbe action to be discontinued.

If tbis were all tbe evidence, upon tbe count for cotton 'sold, it would maintain it. But notwithstanding the parties verily believed tbe cotton was actually sold to Morse, it was a clear misconception, too obvious to any legal mind, which adverts to tbe Statute of Frauds and Perjuries, to warrant any discussion. . On tbe 3d January, Morse made a1 bid for tbe cotton, and tbe principal clerk of tbe defendants agreed to accept it. Next day, tbe 4th January, a bill of sale of tbis cotton to Morse was made, and being entered in tbe defendants’ books, as was usual, was placed upon their file — Morse paid nothing — received nothing — signed no memorandum of tbe bargain.. Tbe cotton was to be examined, to ascertain conformity to samples', .and to be re-weigbed. It was, in no sense, delivered.- There was, then, in point of fact, no sale, according to law.. And tbe plaintiff’s counsel is quite too much skilled in. tbe law, to tbink, or to contend, that there was; but be insists that tbe letters already cited, connected with tbe fact, that they authorized tbe plaintiff to draw upon them by reason of tbe sale announced, and considering bis letter to them of 4th .February, 1853, that be never wished to draw in advance of .funds in their bands, authorized bim to regard tbe sale as made; so far as be was concerned, however tbe matter might be. as between tbe defendants and Morse : ( Vide first ground of appeal.)

To test tbis upon general reasoning, let us consider that on tbe 4th January, 1856, tbe plaintiff was still tbe owner of tbe cotton, in tbe bands of bis agents, (these defendants,) and could have controlled tbe disposition of it. If tbe defendants were liable to bim for tbe value of tbe goods, they must have been so whether tbe fire bad destroyed it or not; they must have been liable whether it was actually sold or not, because they said it was, and thought so. Suppose it bad not been destroyed, and that Morse bad failed, or refused to take it, whose cotton would it still have been? Tbe plaintiff’s undoubtedly. He could have directed it to be bolden for a higher price; be could have withdrawn it, upon paying liens, from tbe custody of tbe defendants, and placed it in other, bands. He-could have tbe enhanced value of it, if it bad been sold to some other, on default or failure of Morse, for forty instead of thirty-four cents per pound. So that it was not tbe transaction with Morse that caused tbe plaintiff’s loss, but tbe fire, for which no blame or liability is imputed to tbe defendants. Tbe only case cited in support of tbe count now under consideration is that of Le Fevre vs. Lloyd, adm’r, 5 Taunt. 748, (S. C. 1 Com. Law R., 250,) and that case is clearly distinguishable from this. A broker to sell, bad sold and delivered tbe goods, and drawn on tbe purchaser in favor of tbe owner of tbe property, at two months, and remitted tbe bill to tbe plaintiff. It was dishonored by tbe drawee, and tbe broker would have assumed tbe ground that be, as tbe drawer, was in law tbe plaintiff himself, for be only did what tbe plaintiff, if present in London (tbe place of tbe transaction), would himself have done, in tbe usual course of such transactions. Tbe broker was held responsible, as drawer, upon this bill, for these reasons: tbe broker, by drawing this bill, put an end to all doubt as to tbe buyer’s responsibility. Tbe vendor, upon receiving it, in -consequence of bis good opinion of Lloyd,’ tbe defendant,'; dismissed from bis mind all care about tbe solvency of tbe purchaser. Tbe distinguishing facts in that case are obvious; tbe goods were actually sold and delivered, and as a substitute for them, and as a clear indication that the transaction was closed, a bill was remitted and received, and relied on. Here nothing of this kind was done; no damage accrued to the plaintiff in the negotiation with Morse, called a sale by-mistake ; his goods remained in possession, and subject to his order; he did not draw for the proceeds, and thereby incur any liability. If he had done so, ’tis unnecessary for us to consider now what law would have thereupon arisen.

So it must be evident that the jury having found against the plaintiff upon the count for cotton sold, under proper instruction from the Court, is not matter of just complaint.

We think, with the presiding Judge, that the claim for damages for default to insure was the strongest position of the plaintiff, and perhaps if he had persuaded the jury to be with him on that ground, we should have left the result undisturbed. v

But it was necessarily a question for the jury, and there was no misdirection. Whether the defendants had committed a breach of contract, in that respect, was matter for inference from circumstances proved. When we remember, that in the course of eleven years more than five hundred bales of cotton were sold by Colcock, and by him and his co-partner for the plaintiff, amounting to so much as fifty-five thousand dollars, and but two instances of a charge for insurance were shown, and but one of them was admitted to have been intentionally made, and the last of them in January, 1855, about a year before the disaster which gave rise to this action; .that there is no evidence of instruction, at any time, to insure; that the general tenor of the plaintiff’s letters of instruction was to direct an instant or a speedy sale; that in an interview, after the destruction of the cotton, Colcock affirmed that they were not told to insure, and the plaintiff, not disputing that, said, I tell you to do it now.” Considering such facts as these, we should consider ourselves unwarranted in reversing tbe verdict of a jury, Having such a basis to rest upon.

Though regretting the misfortune of the'plaintiff, we must adhere to the legal rights of the parties, and recognise the proper function of the jury; and are constrained, therefore, to refuse the motion in this cause, and

It is ordered accordingly.

Wardlaw, Whether, Glover,'and Muhro, JL, con-, curred.

Motion refused.  