
    R. M. M’Pherson vs. Neuffer & Hendrix.
    
      Factor — Lien—Evidence—Merchants' Boohs— Waiver Trover — Bill of Lading — Conversion.
    A shipped ■wheat and flour from Knoxville, Tennessee, to B in Charleston, South Carolina: — Held, upon examination of the evidence, that B was not the purchaser, but that he was the mere consignee for sale, and that the title remained in A.
    The evidence further examined and B held, to have no lien for advances made, acceptances to mature, expenses paid, or for general balance.
    An entry in a merchant’s book is not evidence of a demand against his customer for forfeiture in supplying wheat according to special contract.
    Where a factor, to whom goods have been consigned, refuses upon demand to deliver them, assigning reasons for the refusal and making no mention of a lien for expenses paid, such failure to mention the lien is evidence of its waiver.
    A, who had shipped goods to his agent for sale, drew a bill of exchange on the agent in favor of 0, and delivered to 0 the railroad receipts for the goods : — Held, that such delivery was no transfer of the title so as to enable 0 to maintain trover for the goods.
    Where one wrongfully sells or uses the goods of another, it is itself a conversion, and demand and refusal or offer to pay charges need not be proved.
    BEFORE GLOWER, J„ AT CHARLESTON, JANUARY TERM, 1857.
    This was an action of trover for the conversion of four hundred and eighty-six bushels of wheat, and one hundred and fifty barrels of flour.
    On the 31st July, 1855, one M. W. Williams, who was engaged at Knoxville, Tennessee, in the business of purchasing and shipping grain and flour, shipped from Knoxville two hundred and forty-three sacks, containing four hundred and eighty-six bushels of wheat, consigned to the defendants at Charleston, South Carolina, and took a receipt or bill of lading for the same from the agent of the East Tennessee and Georgia Eailroad Company. On the 15th August, and again on the 21st August, 1855, he shipped flour, on each occasion seventy-five barrels, from the same place to the same consignees, and took receipts for the same as before. Upon these receipts were endorsed assignments from Williams to the plaintiff, of the receipts themselves, and of the articles shipped, dated the 3d September, 1855.
    
      Samuel Morrow, examined by commission, testified, that the signatures of. Williams to the assignments endorsed on the receipts were genuine; that about the 21st August, 1855, he, the witness, advanced five hundred dollars to Williams, who placed the receipts in his possession as security; that a few days afterwards, on the 24th August, the plaintiff, to whom Williams was indebted, paid to the witness the five hundred dollars, and thereupon he returned Williams the receipts, who immediately transferred them to the plaintiff; that Williams was then considered solvent, has since become insolvent and gone to parts unknown.
    
      Benjamin Bhett, of the firm of Ehett & Eobson, testified, that the receipts were enclosed by the plaintiff in a letter to his firm; that on the 28th August, 1855, the day after they were received, he took them to defendants, and seeing Hendrix, asked if they had received the flour and requested that he would indorse the receipts. Hendrix refused to indorse and said he did not know if the flour had been received. Accompanying the receipts was a draft at sixty clays for one thousand five hundred dollars, dated 21st August, 1855, drawn on defendants by Williams in favor of plaintiff. Witness presented the draft to defendants for acceptance. Hendrix took up his pen as if to accept, but did not.
    Evidence as to the value of the wheat and flour, and showing that it had been received by the defendants, was given. It further appeared that from June to September, 1855, large shipments of wheat and flour were made by Williams to defendants,- the sales of which were made by them until November, 1855.
    The defendants produced their account current with Williams, as follows:
    
      M. W. Williams, in account current and interest, from July 24,1855, to December 29,1855, with Keuffer & Hendrix.
    
    
      
    
    They also produced their account current with Eavenel & Co.
    
      Messrs. Davenel <& Co., in account with Heuffer <& Hendrix.
    
    
      
    
    
      B. F. Moise, proved three drafts on defendants by^ Wil- • liams: one dated lOtb July, 1855, for $1,500, and payable tbe 11th September; one dated the 20tb July, 1855, for $680, due the 21st September, and tbe third dated 23d July 1855, for $1,500, 'and due 26tb September, and all of these were paid. Williams was in the habit of shipping flour to defendants. (AVitness proved two letters from Williams to defendants, one dated 3d August, and one 30th July 1855.)
    Knoxville, July 30, 1855.
    Messrs. Neuffer & HeNdrix :
    Gejstts : — In reply to your two last, I will say I will undertake to furnish you on the ears, by last next week, 500 bbls. Knoxville Steam Mills at 6 50 dolls, per bbl. as you propose. And as to shipments of wheat I will send you 3 to 10,000 bushels at 1 50. Your order for 30,000 bushels could be filled from below here and money made on it if you allow 15 cts. per sack, for all new two bushel Osnaburg sacks, as others have been dping in the market. Please write about the sacks.
    T need no letters of credit where E. E. Eeceipts accompany the Drafts, and therefore return them.
    I send you a car load Shorts and Middlings to see what can be done with them in your market.
    Yóurs, &c.,
    M. W. WILLIAMS.
    Knoxville, Aug. 3, 1855.
    Messrs. Neuffer & HeNdrix:
    Geuts : — I wrote you a few days ago that I would take 10,000 bush: of the wheat you had an order for at 1 50. I have now five car loads in depot, and receipts for two car loads. Will have it all in, in a few days, and am willing to take 20,000 bush, more if you have not let it out. Can have the 30,000 bush, in depot by 1st Sept., and if the Eail Koad can take it forward as fast as delivered you should get it all by 10th Sept. Wheat this year is very good and if you desire it, can send you samples by express. Please write me about the sacks. Will heavy domestic sacks do? They can be bought at 10 or 12 cts. Osnaburgs will cost 15 and our town is now out of the Osnaburgs. Have four car loads flour ready.
    Yours, &c.,
    M. W. WILLIAMS.
    Of the 243 sacks in July, can’t say how many were received 145 were received and sold the 12th and 20th September. A week or ten days is the time of transportation between Knoxville and Charleston. All the flour shipped by Williams was sold. The bulk by the 5th September — some before — and most before the 3d. The transactions with Williams in wheat are in one lot $1,621 63, and in flour and shorts $3,151 66. From July 12th to 29th August, or 1st, 2d or 3d September, were the dates of the receipts in Knoxville, and the sales at different times until 6th November, when some few sacks of damaged wheat were sold. 10th Sept. 1855, $3,151 66, is nett proceeds to Williams’ credit, and 24th Sept. 1855, $1,621 63, is amount to Williams’ credit from sales of flour and wheat. The.flour was sold from $6 50 to $9 per barrel. $6 50 is price agreed upon by Williams and defendants as per letter of 30th July, 1855. Defendants could not fill their contracts made with persons here for flour. Defendants received only 300 barrels during the contract. He don’t know if the first 150 barrels, shipped 12th July, were on this contract. He commenced with defendants as clerk, in June, 1855. Prom defendants’ ledger, $18 17 appear to be in favor of Williams, and this was carried to the credit of Brunson & Co., (of which Williams was a member,) and which firm is indebted still to the defendants in the sum of $10,646 34. Defendants charged Williams with a forfeit, as Williams did not complete his contract, and it is entered as cash in the book against Williams. There was a contract between defendants and Ravenel for wheat and a forfeiture was paid by defendants. He can’t say bow much, nor can he say that the $1,000 was paid or to whom.
    His Honor the presiding Judge, in his report, says:
    “ The important enquiry was, were the wheat and flour shipped and consigned to defendants pursuant to their order and had they a beneficial interest. Having called the attention of the jury to the rights and liabilities of consignor and consignee, they were directed to enquire, if the consignment was made according to the order of defendants, under a contract to purchase, and if they so found, the verdict should be for the defendants. They were instructed, that if goods were shipped pursuant to order, the consignor is no longer the owner and cannot change the consignment: that if this wheat and flour were part which Williams had contracted to sell to defendants, he could not, after the shipment, make a valid transfer of it to Morrow or plaintiff, by the endorsement of the bills of lading.
    “In directing the attention of the jury to the account current between the defendants and' Williams, I alluded to the forfeiture of $1,000, an item debited to Williams in the account, and asked where was the evidence to prove it. In this connection I referred to the character of forfeitures like the one alleged to have been incurred in this case, and compared them to those colorable contracts for the sale and purchase of articles where neither- party intended to deliver or accept, but only to pay differences according to the state of the market; and added, that such were held to be gaming contracts, in England, under a late Statute of Parliament.
    “ The jury found for the plaintiff a verdict of $1,737.”
    The defendants appealed, and now moved this Court for a new trial on the grounds:
    1. That his Honor erred in charging the jury that they should find for tbe plaintiff unless there had been a sale to the defendants. Whereas it is submitted that if the shipment was without order, then the consignor could not alter the bill of lading after delivery to the consignees, the defendants; and if pursuant to orders then the consignor was “ functus officio” and could not alter the bills of lading unless the consignees were insolvent.
    2. That the only evidence of the nature of the shipments was the letters of 30th July and the 3d of August, between M. W. Williams and Neuffer & Hendrix, his factors and agents, which clearly showed a shipment pursuant to orders and at a fixed price.
    3. That if the shipment was without orders then the verdict was manifestly wrong, as the proof was that all the flour and wheat received by the defendants, except that of the seventy-five barrels of flour of the 21st of August, had been long before delivered to the defendants and the whole by the 3d of September, 1855.
    4. That his Honor should have charged the jury that no property in these goods could have passed to the plaintiff under any circumstances until the 3d September, 1855, the date of the transfer.
    5. That his Honor erred in charging the jury that if there was no sale, then the defendants were bound to account to the plaintiff in an action of trover for the proceeds, whereas it is submitted there could be no recovery if there had been a delivery to the defendants before the transfer of the bill of lading, or if the shipment was pursuant to orders, or if the defendants were creditors.
    6. That his Honor erred in charging that there was no proof of any forfeit so as to charge Williams, Williams’ letters being silent as to any forfeit to be paid by Mm: as tbe forfeit of one thousand dollars was paid by the defendants as his agents, and so proved.
    7. That his Honor erred in charging the jury that a penalty to be paid as a forfeit for the non-delivery of goods was void as a wager.
    8. That his Honor erred in charging the jury that under the circumstances the defendants were bound either to accept the draft or refuse the consignment, whereas there is no proof of the presentation of the draft to defendants.
    9. That the plaintiff could not recover on the duplicate of the bill of lading of 31st July, there being no competent proof of the loss of the original.
    10. That the verdict was capricious and excessive, the only proof of the quality of the flour and wheat being that offered by the defendants, some of which was damaged, and that the jury should not have found more than the proceeds of the same realized by the defendants, and that the jury should have allowed the defendants the freight, drayage and customary expenses of the same.
    Simons, Memminger, for appellants.
    Porter, contra.
   The opinion of the Court was delivered by

WITHERS, J.

The leading question on the trial of this case, that indeed upon which the defendants staked the fate of their defence, was whether the four hundred and eighty-six bushels of wheat and the one hundred and fifty barrels of flour, the subject-matter of contest, were consigned to them by one Williams upon an order for purchase; or whether these articles were sent to them as factors or consignees merely, and therefore subject to the order of the shipper. This question the jury determined against the defendants; and, in the opinion of this Court, there was abundant evidence to support such finding. In the first place, Williams drew a bill of exchange against the goods in favor of McPherson and accompanied the same by the carrier’s receipts placed in his hands but not otherwise transferred. The same receipts had been in the hands of one Morrow for a few days and were redeemed by McPherson, who reimbursed Morrow for his advancement to Williams, whereby the indebtedness of the latter to McPherson was increased. This disposition of the carrier’s receipts, accompanied by a draft, is not reconcilable to the idea that Neuffer & Hendrix were the owners of the wheat and flour; for it must have been intended from the very nature of the transaction, and the evidence is explicit that it was in fact intended, to give Morrow first and McPherson last some sort of control over the articles shipped, or over the specific proceeds of them, to secure the reimbursement of money advanced. In the second place — The account current with Williams, produced by Neuffer & Hendrix, which (they say) embraces the goods that are the subject of this action, debits the defendants with the nett proceeds of those goods which is wholly inconsistent with the pretension that they were purchased in pursuance of a contract for the same at stipulated prices. Jn the third place — In the letter of the 30th July from Williams to the defendants, wherein he says he will furnish five hundred barrels of flour at six dollars and fifty cents per barrel, and from three to ten thousand bushels of wheat at one dollar and fifty cents per bushel, he also says, as follows: “ I need no letters of credit where railroad receipts' accompany the drafts and therefore return them.” It is clear from this, that Williams meant to pledge tbe articles shipped by the use of the carrier’s receipts, and not to rely upon bills drawn on his vendees in Charleston, nor to place the payees of those bills upon the credit of him and his consignees merely. He could not so pledge goods that had become another’s by sale and delivery. He m,eant to occupy such position as would preserve the right of stoppage in transitu. Lastly — When Rhett, in behalf of the plaintiff, called upon the defendants for an acceptance of the draft, or a renunciation of the consignment by an indorsement of the carrier’s receipts, whereby he would have been entitled to demand and receive the goods from the carrier, the claim of title to them by purchase, or the right to hold them on any other ground, was not pretended. We, therefore, consider the jury well warranted in affirming that Neuffer & Hendrix were not purchasers, in any sense.

Then, in the argument here, the defendants’ resort to the rights of consignee or factor, and assert a claim to retain for liens, to wit, for expenses, for balance on account, and liabilities for acceptances. This right, they allege, existed when a demand was made by Rhett, on the 28th August, 1855, and no reimbursement or release from liability was then, or afterwards made or tendered.

There is no occasion to discuss the fruitful topic of law as to such rights of factor or consignee, being creditor of the shipper upon advances made, expenses paid, or acceptances yet to mature. The general principle is clear enough in favor of such right to retain in such circumstances. But the question arises, was there in point of fact any lien on these goods ?

As to advances made or liabilities upon acceptances; there is no evidence of either, (unless it can be discovered in the account current,) on the 28th August, 1855, or at any other time, touching the specific wheat and flour in question. The wheat was not delivered to the railroad in Tennessee earlier certainly than tbe 31st July, 1855, and tbe flour not earlier than tbe 15tb and 21st August, of tbe same year. Now tbe acceptances charged in tbe account with Williams are all before either of tbe above dates: they are of July 23d, July 24th, and August 3d, 1855, and make an aggregate of three thousand seven hundred and fifty-five dollars. When we observe, as the report states, that “from June to September large shipments of wheat and flour were made by Williams to the defendants, the sales of which were made by them ’till November,” — that Williams’ plan of business, as set forth in his letter of July 30th, and illustrated by what he actually did with McPherson, was to draw a bill against his shipments and supply the payee of the same with the carrier’s receipts— that there is no evidence and if the truth were otherwise the defendants would have shown it, that Williams drew any bill against the wheat and flour in question, except that delivered to McPherson and refused acceptance by the defendants, it cannot be believed or plausibly affirmed, that on the 28th August, 1855, they were under acceptance for Williams on account of these particular parcels of wheat and flour, or either of them. Such matters as are entered in their account, under two lumping items, under the general date of December 29th,'sold nobody knows when or when received, may or may not embrace the parcels now sued for, but the aggregate nett proceeds make the defendants debtors, not creditors. So the right to enforce any specific liens on the specific wheat and flour is not established, but rather disproved.

As to their right to retain for general balance on account against Williams — Where is the evidence that he owed them any general balance, at any particular time ? If the truth was so, could not the defendants have shown it ? What they do show, however, is this ; under date 29th December, 1855, they credit Williams with three thousand one hundred and fifty-one dollars and sixty-six cents, nett sales of flour and shorts, due September 10th preceding, and with one thous- and six hundred and twenty-one dollars and sixty-three cents for nett sales of wheat, due September 24th preceding, amounting in the aggregate to four thousand seven hundred and seventy three dollars and twenty-nine cents. Deduct for acceptances charged by the defendants, and hereinbefore stated, three thousand seven hundred and fifty-five dollars, and the balance was in favor of Williams for one thousand and eighteen dollars and twenty-nine cents. Nor is this balance to be reduced by the item of one thousand dollars entered as for forfeiture paid to Bavenel & Co. Neither the payment of this item nor the authority and duty to pay it, on account of Williams, is proved. A book entry will not maintain such demand. Whether such sum was ever paid, or to whom, the defendants’ witness did not know. He said defendants paid to Bavenel & Co. a forfeiture upon default in supplying wheat according to their contract. In their account with that firm, however, we find charged on that score, under date 13th September, 1855, five hundred-and forty dollars and thirty cents, forfeiture on five thousand four hundred and three bushels of wheat, short delivery. The rate of forfeiture was therefore ten cents per bushel. What had W illiams to do with this ? The forfeiture charged to him as paid to Bavenel & Co., is represented to have accrued on a contract with them by Williams through the defendants, is set down at one thousand dollars, and under date 25th August, 1855. It is urged that this arose from Williams’ default to forward ten thousand bushels of wheat according to his contract, as shown by his letters, copies of which appear in the brief. There is not a particle of proof of such a contract between Williams and Bavenel & Co., and this item of forfeiture becomes too suspicious to warrant any complaint against a jury who should reject it, when the conflict of dates and sums above noticed,is taken into consideration. In one account a forfeiture for five hundred and forty dollars and thirty cents, is entered on 13th September; in tbe other tbe forfeiture is entered for one thousand dollars as of 25th August. Conjectures are submitted to account for these discrepancies, but where a man is called upon to pay one thousand dollars on such a score as this, nothing less than explicit, intelligible and reliable proof will do. The lack of such evidence, on the part of those who make such demand, and the production of such evidence as we have here, combine to explode the item for forfeiture. Then, we conclude, there is no evidence that on the 28th August, when the plaintiff demanded an acceptance of his draft for one thousand five hundred dollars, or a transfer of the wheat and' flour, or what is tantamount, a relinquishment to him of a right to receive them, the defendants had any general balance against Williams on factorage account.

As to their lien at that time for expenses or commissions, or both — Whether the wheat had been then received, or if so, whether it had been sold, is left in uncertainty. Hendrix said, he did not know whether the flour had been received and he said no more. No claim so far as “the evidence goes, was then made to retain on any account whatever! How could payment be made of such a claim, or tender of it required, when such right was unclaimed and unknown? If a party have a lien and does not mention it as a ground of refusal, but refuses upon other grounds, it is evidence of his having waived the lien; Duke vs. Richards and note, 41 Eng. Com. L. R. 340.

Thus far the result is, that in the four hundred and eighty-six bushels of the. wheat, and one hundred and fifty barrels of flour, the defendants had no right of property, absolute or qualified, and ought to have rendered them to the rightful owner on the 28th August, 1855.

We are thus brought to the question, had McPherson then the right of property in the wheat and flour: if he had not there was at that time no conversion as against him.

Whatever equitable interest or lien he may have had by tbe possession of tbe carrier’s receipts and tbe advancement of money to tbe shipper upon bis bill drawn against tbe goods, be bad not on tbe 28th August such legal title to them as would have then maintained an action of trover. This seems very plain when we observe, that on tbe 21st August, Williams being then tbe unquestionable owner of tbe goods, drew a bill against them upon tbe consignees for one thousand five hundred dollars and delivered that, with the carrier’s receipts, to tbe payee, the plaintiff. What then was expected and necessarily imported by such transaction? Undoubtedly that Neuffer & Hendrix would accept tbe bill and sell tbe goods to pay it. If tbe goods themselves were sold tbe receipts might as well have been then indorsed as on tbe 3d September afterwards. While goods are in transitu it is often very difficult to say, as whose agent tbe carrier bolds them, when a transfer of some right of property in them, or some kind of possession of them, actual or constructive, is meant to be transferred by tbe original bailor to a third person: and this presents the arena of vast litigation. Every such case must rest as well upon intention as upon acts done. We think tbe facts show that Williams never parted with tbe legal right to the goods, tbe right of stoppage in transitu, either to Morrow or to McPherson, and that he never so intended until the 3d September, when he assigned the receipts. Then it was that McPherson acquired such legal interest as would maintain trover, against a wrong doer. He did not before acquire it, else the bill of exchange to be accepted, and paid by tbe defendants out of tbe sales of the goods, would never have been drawn. This consideration overthrows the idea that the mere delivery of the carrier’s receipts not indorsed or assigned, was a symbolical delivery of the goods themselves, as in tbe case of the key of a warehouse, or the transfer of a bill of lading within the law commercial. In the case of Wilhes et al. vs .Ferris, 5 Johns. 336, cited for the plaintiff, tbe sugar there in question had itself been assigned, and the warehouseman’s receipt delivered by the assignor, and this makes an obvious distinction between that case and this. The defendants were expected to accept the bill of exchange, and it could not have been designed that they should, when the receipts unassigned were delivered, part with the goods, This seems to have been understood by McPherson and Williams, for measures were at once taken to procure assignments of the receipts. It is not perceived how McPherson could have compelled a delivery of the wheat and flour to him, by the railroad or other person, before he acquired the right so to do on the 3d September, 1855.

Nevertheless we think that McPherson’s action was well founded when he did institute it. What occurred on the 28th August, though no conversion as against him, was full notice to the defendants of his claim and 'of a revocation of their authority to receive the goods or to dispose of them, proceeding from Williams who was the owner confessedly.

The plaintiff brought his action in October, he acquired his legal right on the 3d September, meantime, or at some uncertain time which the defendants chose to leave uncertain, they sold the goods, and certainly that act was a conversion itself. If a party wrongfully assume property in' goods belonging to another, or wrongfully use them, it amounts to a direct conversion, and in general no demand or refusal is necessary before bringing an action, nor is it necessary to offer to pay any charges. 6 East, 540. Brown on Actions at Law, 437, and the authorities cited in note. It was indeed contended that the wheat was received and. perhaps sold before the 28th August, and before McPherson’s title was perfected. If this be true, (and the defendants having it in their power failed to prove it,) what more natural, what more incumbent on them, than to have said so to Ehett, and to have placed their refusal to accept the draft, or to transfer or deliver the goods, on such grounds ? Yet the defendants did not, and in the account current produced by them they do not, disclose tbe time of sale, nor identify one parcel of wheat or flour as distinguished from another, nor adduce any evidence on these points. If they thus withhold what it must be presumed was in their power to disclose, they cannot justly complain that adverse inferences have been drawn from imperfect and dubious disclosures, some of which, as the item of forfeiture for example, excites distrust.

We have not in this discussion been guided by the order observed in the series of grounds of appeal, nor have we altogether restrained our investigation to limits plainly prescribed by them. The grounds of appeal taken ought to limit the discussion in this Court. It was desirable however to give them in the present instance, a liberal scope, rather than incur the hazard of too narrow a view of the real merits of this cause. The observations already made comprise a consideration of the meritorious questions which the evidence makes, and grounds of appeal taken could make no more. If certain questions were not made upon the circuit, or little attended to there, that are stirred here, or if a better foundation could have been laid there for the defendants, in certain respects, by the production of more testimony than they did adduce, and they have suffered from obscurities thence arising, the consequences must justly rest upon themselves.

The motion is dismissed.

Wardlaw, WhitNEb, G-lovek and Mustro, JJ., concurred.

Motion dismissed.  