
    Robertson & Gilfillin vs. John Shannon.
    
    Defendant having about $4000, desired to invest it in cotton for speculation. He accordingly applied to the plaintiffs, who were cotton brokers in the city of Charleston, and they purchased for him 316 bales ; procured an advance on their own responsibility of $12,470, to pay for the cotton so purchased; shipped it on board the Joseplia, (a vessel designated by defendant,) and consigned it, according to the usages of trade, to a house in Liverpool. Subsequent to the sailing of the vessel, the defendant refused to complete the contract. Upon this refusal this action was commenced. Verdict for plaintiffs, $4000. Held, that the defendant was liable to the plaintiffs as vendors ; that there was a sale and delivery; and a new trial was refused.
    Before O’Neall, J., at Charleston, May Term, 1840.
    This was an action of assumpsit, brought to recover the price of 316 bales of cotton, bought by the plaintiffs, as cotton brokers for the defendant.
    The facts of the case may be stated as follows : the defendant being about to return to Ireland, and having about four thousand dollars, in money, wished to invest it in cotton. The plaintiff, Gilfillin,* was introduced to him, as a cotton broker, by Mr. George Cotchett, and Ms desire to purchase cotton stated. He and the plaintiffs were afterwards together at Martin and Walter’s, and at James Adger & Co.’s, for the purpose of buying cotton ; it was then stated in the presence of the defendant, by the plaintiffs, that an advance was to be procured, which, with the defendant’s four thousand dollars, would enable them to purchase for him about three hundred bags. This arrangement Mr. Walter thought he (Shannon) understood. Mr. Cotchett thought when he saw him and the plaintiffs, that he hardly understood it. The plaintiffs negotiated for, and obtained the advance. The defendant was not known in that part of the transaction to Trapman or his agent, Wortlier-spoon, who made the advance. The party making the advance contracted for the freight. The plaintiffs, for the defendant, and in his presence, bought three hundred and sixteen bales of cotton ; their credit was alone looked to for the payment; and the cotton delivered to them by Martin & Walter, and George Cotchett, for James Adger & Co. The defendant said he was going to ship the cotton by the barque Josepha, in which he had obtained his passage, and that he was “ going to go with the cotton.” The cotton was shipped from the 19th to the 23rd April, 1839. The defendant was alongside the Josepha while the cotton was going on board. Along side of the vessel he was informed by Gil-lillin, that if he was not disposed to take the whole venture, he could get another person to take one hundred bags; the defendant replied he would take the whole for luck. The captain signed, on the 23rd of April, a receipt for the cotton shipped by Robertson & Gilfillin. On the 24th, the bill of lading was forwarded ; (hence, I inferred it was signed on or before that day;) which set out the shipment by the plaintiffs to Coleman & Stotleporth, the correspondents of Trapman, who made an advance of about three-fourths of the price of the cotton, (twelve thousand four hundred and seventy dollars.) This was according to the course of trade, according to which (said the witness,) the bill of lading is made out in the name of the shippers, and consigned to the correspondents of the house making the advance. The invoice discloses the name of the owner, for whose ultimate benefit the shipment is made. An invoice was sent on, and Mr. Wortherspoon’s correspondence stated John Shannon to be the owner. The first advance was made before *Wortherspoon, the agent for Trapman, knew of any misunderstanding having arisen between the plaintiffs and defendant. He offered to take one hundred bags of the venture, and so did Mr. Kerr. Cotton continued to improve in price until about the sailing of the vessel, 12th of May. The cotton went forward to Stotleporth. It seemed, from the proof, to be the usage of trade, that cotton on which an advance was made, was pledged, 1st, to the party making the advance ; 2nd, to the shippers for any thing due to them by the owner on account of it. On the 20th of April, the plaintiffs paid Martin and Walter, four thousand dollars in cash, and on the 24th or 25th, three thousand seven hundred and sixty-eight dollars more, and to Adger & Co., the money for the purchase from them was subsequently paid. On the 23rd of April, the defendant refused to comply with his contract, and the plaintiffs made an affidavit to hold him to bail for the whole amount of the purchase of the cotton. He was arrested and went to jail on the 24th, where he has ever since remained. The plaintiffs offered to credit the defendant with the proceeds of the cotton in Liverpool, but this was refused. There were sundry special counts in the declaration ; but I thought the whole case depended upon the questions whether the plaintiffs had sold the cotton to the defendant; and whether they had paid money for his use ; and that, therefore, the counts for goods sold and delivered, and the money counts, covered the whole case.
    The jury were instructed in conformity to the opinion of the Appeal Court, on the former trial of this case.
    They were told, that to entitle the plaintiffs to recover, as vendors of the cotton, it must appear to their satisfaction that the cotton was delivered to the defendant This, I thought, was abundantly shown in the shipment, and his knowledge of, and assent to that fact. Although this was my opinion, I did not state it to' the jury, but referred them to the facts which had led my mind to that conclusion.
    They were also told, that to entitle the plaintiffs to recover on the money counts, it was necessary that they should be satisfied that the plaintiffs bought the cotton for the defendant, that they were bound to pay for it, and that they had paid money before suit brought. They were told that the four thousand dollars, paid to Martin & Walter, was such a payment as would, to that extent, entitle the plaintiffs to recover, if it was true that they bought the cotton for the defendant, and were bound to pay *for it. I said to them, in this connection that for the money advanced by Trapman, they were liable, as the parties procuring it, and if the cotton did not sell for enough to reimburse him, they must make it good ; and hence, that whether they paid that sum out of the money advanced by Trapman, or out of their own funds, was perfectly immaterial. For it was their money in either point of view.
    The jury found for the plaintiffs four thousand dollars, and the defendant appeals, on the annexed grounds :
    1. Because his Honor erred in charging the jury that Robertson & Gilfillin were liable to Trapman for the ultimate refunding the amount advanced by him, whereas, in fact, they were only agents of Shannon, and having fully disclosed their principal, were not personally bound, unless they made some new contract not connected with Shannon.
    2. Because he stated to the jury, that it was immaterial whether the money paid to Walter was plaintiff’s money, or had been advanced by Trapman, in anticipation of his advance of three-fourths of the purchase.
    3. Because the Court expressly charged, that the special counts were unnecessary, as the plaintiff must recover, if at all, on the other counts. Whereas, it is contended, that the counts for refusing to complete the contract, are the only ones supported by the evidence.
    4. Because the verdict is not supported by the evidence, and was arbitrary, as defendant, if liable at all, was liable for the whole, and by necessary implication, proves that the plaintiffs did not make out a case entitling them to recover at all.
    5. Because the true cause of action was tlio refusal by defendant to complete the alleged contract, after which the agency of plaintiffs terminated, and they were only entitled, if at all, to damages for the refusal to pay the cash part of the purchase.
    
      A. G. Magrath, for the motion,
    said — The plaintiffs cannot recover, either upon the counts for goods sold, the money counts, or the special counts. They are not vendors. Shannon is not a purchaser. The statute of frauds is in the way. The plaintiffs cannot prove a contract, as is required by its terms. There is no pre-tence that there was an earnest paid, "::nor is there evidence of a memorandum, The question then is, whether there was a delivery to Shannon. Delivery under the statute must be such as to make the vendee the owner ; to give him power to control the property. 1 Comyn on Con. 91.
    There is no evidence of such delivery here. Where is the evidence of Shannon’s right? He never could control this property. It never was in his possession. Suppose the cotton had arrived in Liverpool, Shannon could not have supported an action against the captain or owner for the possession, or even for the damage, if any had been sustained. He had neither bill of lading, nor any other evidence. To presume a delivery in this case is within all the mischief laid down in Cooper vs. Elston, (7 T. R. 14.) McIntyre never was his agent, nor were Coleman k Stotleporth. These all represented Robertson <& Gilfillin, not Shannon. Not one of these parties have ever recognized Shannon as their principal. How then can it be said the delivery to them was a delivery to Shannon? Nor can the verdict bo sustained under the money count. There is no evidence of money paid at his request. This is important. This may be implied, but not so in this case. No circumstance exists here to presume or imply this request. Even the $4000 is not money paid on request. There is no case where the count for money paid can be supported, where the party who sues for the money retains also the goods for which he claims to have paid money. Robertson k Gilfillin kept the goods and the money. The proper evidence of payment of money in this case, would be the payment of money, and transferring the property to Shannon. But so long as they kept the cotton and refused to deliver, they could not sue for money paid. And moreover, to make Shannon chargeable, under this count, it must appear that the money was paid under a certain contract, the terms of which have been performed by them. Now, the question is, whether these parties have not violated their contract; and they have not shown this, which is the point in issue.
    If the plaintiffs cannot recover upon the general counts, can they recover on the special counts ? The 2nd and 3d special counts allege delivery, which we contend is not proved, and therefore they must fail. The first special count alleges only the purchasing of cotton at the request of Shannon, *and his promise to pay. But, where is the evidence of this ? There has been no evidence whatever of the whole contract. The consent of both parties to the contract is necessary to make it binding. And the conduct of the parties at the time when the dispute arose, proves that this was not the contract; it was not the understanding of the parties ; and this is the essential feature in every contract. All inferences are here excluded, because the conduct of the parties is so plain that it makes positive evidence. So that there is no evidence whatever to support even the special counts.
    But the rights of the parties result from their legal positions at the time of the quarrel between the plaint-ill's and the defendant. If they were principal and agent when Shannon quarrelled with them, this was repudiating their agency. It was there terminated. Their agency then ceased. But although this is so, still they continued to conduct themselves as if they were authorized agents, fcfo far then as regards these parties when they quarrelled, Robertson k Gilfillin should have at once terminated their agency. They could not be agents against the consent of Shannon. Had they sold the cotton in Charleston before the vessel sailed, there would have been no loss. The sales of cotton here would have more than paid all losses and expenses. This was the prudent course, and this is the course they were bound to pursue, under the rule that the agent must act most to the benefit of the principal. All the loss here was caused by the misconduct of Robertson k Gilfillin, and this they cannot claim against Shannon.
    Yeadon, contra.
    Counsel have brought the prisoner before the Court, to excite the sympathies of your Honors. The defendant is suffering by his own folly and faithlessness. The condition of the plaintiffs is equally deserving of sympathy. Defendant was not contented with buying what his money would afford, he goes to plaintiffs and buys, through them, thousands more.
    All advancements were obtained through the plaintiffs. Plaintiffs acted in good faith throughout the whole transaction. Plaintiffs acted according to the usages of merchants. Mr. ⅜\7. contended that the verdict was properly rendered on the counts for goods sold and delivered.
    If the money liad never been paid by plaintiffs, it cannot be doubted but that the original sellers might have maintained this action for the cotton. Plaintiffs have placed themselves in the shoes of the original sellers. 1 Chitty’s Plead. 5 ; 2 Liv. on Agency, 120 ; 2 Esp. N. P. 493 ; Cited also, opinion of the Court in the former case. The Court decided that the money counts could not be supported, but that they might recover on the counts for goods sold and delivered.
    The Court of Appeals laid down the principle on which the case was to be decided, and the Circuit Court so instructed the jury, and they found accordingly.
    Plaintiffs arc charged in the hooks of the first sellers as the principals. Plaintiffs credited the defendant, and became thereby vendors. Was there a delivery ? Signing the bill of lading was a delivery, and enough to divest plaintiffs of all right, except the right of stoppage of the goods in transita. 2 Term. Rep. 71; also 2 Liv. Ag. 110. Under the usages of trade, defendant could not have the hill of lading. 1 TI. Biackstonc, 304.
    By the usages of trade, the moment the bill of lading is signed by the captain, the right of property vests in the consignees in Liverpool, and they could maintain an action against the carrier for loss or damage.
    The delivery to captain Mclntire, was a sufficient delivery ; and I contend that the captain was the agent, and so soon as this delivery took place, plaintiffs were divested of any further control over the cotton. Defendant’s act was indispensable to again take possession of the cotton. It was shipped for the benefit of defendant, and he could maintain trespass for the cotton, if the plaintiffs had taken possession.
    Plaintiffs are entitled to sustain the verdict upon the counts for money paid, laid out and expended. Plaintiffs paid 84000 for defendant, at his special instance and request, and this was sufficient to support the counts for money paid, laid out and expended.
    
      Mr. Mcmminger, on the same side — said, none of the parties concerned in the transaction could have disposed of this *cotton but defendant. Defendant was only bound to discharge the pre-existing liens. He had the resulting interest. The other parties had no right in law.
    When the contract of agency was determined by defendant’s repudiating the contract, defendant was bound to put the plaintiffs in statu, quo — place them just as he found them, by refunding the amount advanced by them for him. Cited 11 Johnson, 439; 7 Cranch, 500. Agent against principal.
    
    
      Hunt, in reply,
    contended that there was a difference between a broker and a factor. Cited 2 Barn, k Aid. 142, 193 ; 1 H. Blac. 300, 305 ; 15 E. 62.
    
      
      
         S. C., again and again, 2 Strob. 419; 4 Rich. 323. Irving, Sheriff, vs. Robertson, 6 Rich. 228. An.
      
    
   Curia, per

O’Neall, J.

This case has been twice tried, and, in my judgment, is about as plain a case as ever was presented to a Court and jury. It is susceptible of two views : 1st, either the plaintiffs bought the cotton for, and delivered it to Shannon, thus making a sale of it by them to him ; or, 2d, they bought it for him and paid for it in the whole or in part. In either of these points of view, it is a case of facts merely ; and the only inquiry would be, do the facts justity either of them ? That the plaintiffs bought the cotton for Shannon, and at his request, is unquestionable. It was proved by Walter and Cotchett, from whom it was bought. Was it delivered to him ? About that, it seems to me, there can be as little question. He designated the vessel in which it was to go, (the barque Joseph»,) in which he had taken his own passage ; the captain of the Josepha said that the plaintiffs shipped the cotton for the defendant; he, the defendant, was along side, when it was going on board; and when one of the plaintiffs said to him that another person was willing to take one hundred bags, he replied, “ he would try the whole for luck.” He did not object until the whole cotton was on board, and then indeed he refused to comply with his contract.

If these facts do not prove a delivery, then I confess I cannot say what could prove it. But here it is said the defendant did right in refusing to comply with his contract, inasmuch as by the arrangements made by the plaintiffs, he had not the control of the cotton. This is a mere specious presentation of a defence, which cannot be sustained. The defendant had not quite money enough to buy one-fourth of the *eotton which he desired. To obtain the quantity bought, an advance had to be procured by the plaintiffs. This was stated to him ; and after the finding of the jury, we must take it he fully understood it. According to the course of trade, fully proved in both trials, the cotton is shipped in the name of the person making the shipment in fact, and is consigned to the firm in England who are the correspondents of the party here making the advance.

The shipment thus made is to pay, first, the advance; second, the charges of the shippers, if any ; and the balance to the real owner. His name does not appear in the bill of lading, but in the invoice accompanying the cargo.

In this way, the rights of all parties are secured. All these things were done on this occasion. There is, therefore, nothing in this matter which can discharge the defendant. It is, however urged, that when the defendant refused to comply, the plaintiffs ought to have sold the cargo here, and thus a loss would have been prevented. It would be enough here to say. they had discharged their duty, and the cotton was at the defendant’s risk. They had procured or contracted for the advance $12,410; they had bought the cotton for, and delivered it to him. Their power over it, except to send it forward according to the course of trade was ended. The defendant, if he had thought proper, could have had the entire control, by paying the whole price of the cotton ; or if he had paid the difference between the advance and the price, he could have gone on with the cotton ; and in Liverpool, he would have received the proceeds, after paying the advance, the freight, and the shipper’s charges. That he did neither of these, is the defendant’s misfortune ; it is that which deprives him of liberty, and which will deprive him of the earnings of his life. Looking at the case as a sale by the plaintiffs to the defendant, they ought to.have had a verdict for the whole price of the cotton, $16,294 ; but the jury for the present might suppose that the cotton in Liverpool did not quite cover the advance, (for Mr. Worther-spoon said the sales were not equal to it,) and deduct on that account $12,294, which would leave a balance of $4,000 the amount found by their verdict This would still leave the defendant liable for any sum which the plaintiffs may be compelled to pay to Trapman on account of the advance, after deducting from it the *nett sales in Liverpool. But concede that the jury erred, and that the plaintiffs were entitled to receive $16,294, and they are content with the verdict of $4000, surely the defendant ought not to complain. Consider the case, however in the other point of view. The plaintiffs were mere brokers ; they bought the cotton for the defendant at his request. The persons selling it would not sell to Shannon ; they sold to the plaintiffs, and charged them with it. They had no claim whatever on the defendant. Here, surely it cannot be denied, that money paid by them, on this account, was money paid, laid out and expended for the defendant, and at his request. For the obligation was incurred for him, and they were legally liable to pay for him. It is the common case of two persons going into a store, one of them wishes goods, the merchant will not sell to him ; the third person says, let him have them on my account; it is done, and they are charged to the third person, and his liability to pay is beyond all question, and certainly when he does pay, he can compel the party to whom the goods were delivered to pay him. Indeed, I think, notwithstanding the former opinion in this case, that when it was shown here, that the plaintiffs bought the cotton for the defendant, that the venders refused to credit him, and charged it to them, that this was as much a payment for his use, as if it had been made in gold or silver. But that is not necessary for this case, and I only state the position that that opinion may not even impliedly have my sanction. To pay for the cotton, the plaintiffs applied to Trapman for an advance, and got $12,410. This did not pay for the cotton by $4000. They had previously paid this last sum. If even the 12,470, could in any shape be regarded as Shannon’s, they had the right to say that sum is to be applied to the balance still due for the cotton, leaving the $4000 previously paid by them unsatisfied, and for it they were entitled to a verdict. But in point of fact, the money got from Trapman was a loan to them secured by their principal’s cotton. For Wotherspoon, Trapman’s agent, said I did not know Shannon in the transaction, further than that the plaintiffs were buying the cotton for him, and would pledge it for the repayment of the advance. This, by the usage of trade, they had a right to do. If the principal’s cotton paid the advance, it was very well ; but if not, the parties procuring it must, as a matter of course, pay any ^deficit, Considering the case in this way, it is perfectly immaterial whether the money paid by them was from their own or borrowed funds ; still it was paid by them, and they are entitled to recover.

The motion is dismissed.

Butler, Evans and Earle, JJ., concurred. Gantt, J., dissented.  