Halliday v. Hamilton
ERROR to the Circuit Court for the Southern District of Illinois; the case being thus:
In 1867 Sherwood, Karns & Co., commission merchants of St. Louis, had a standing agreement with Hamilton & Dunnica, of New Orleans, to ship produce to them, and to draw drafts on the shipments, which they were to accept and pay. In case the proceeds of any shipment left a balance due to Hamilton & Dunnica, they were to apply the surplus of any other shipment in payment of it. At this time Cole Brothers were the correspondents in St. Louis of Hamilton & Dunnica, and were advertised to make advances on shipments made to them, and often during the season of 1867 made advances upon shipments to this house by Sherwood, Karns & Co. In this condition of things the transaction occurred which was the subject of this controversy.
On the 31st of August, 1867, Sherwood, Karns & Co. purchased of Halliday Brothers, of Cairo, Illinois, through their agent (one Booth) in St. Louis, 1250 sacks of corn, lying at Price's Landing on the Mississippi River, a hundred and fifty miles, more or less, below St. Louis, and a short distance above Cairo, and obtained an order for the delivery of the corn. This order they handed over to the agent of the steamboat Bee, then at her wharf in St. Louis, who issued a regular bill of lading to deliver the corn to Hamilton & Dunnica at New Orleans. On the same day Sherwood, Karns & Co. drew their bill of exchange for $2500 on Hamilton & Dunnica, and in it told them to charge the same to account of this specific shipment. At this time there was a large balance due Hamilton & Dunnica on account of previous shipments of produce. This bill of exchange was taken to Cole Brothers for discount, and sold, indorsed, and delivered to them with the bill of lading attached, by Sherwood, Karns & Co., to whom they paid the proceeds. Shortly after this Cole Brothers deposited the bill of exchange thus accompanied by the bill of lading with a banking house in St. Louis, who sent them forward, and Hamilton & Dunnica accepted the bill of exchange, without notice of any difficulty in the matter, and paid it at maturity. In a day or two after the bill of lading was issued and transferred to Cole Brothers, the steamboat Bee proceeded on her voyage to New Orleans as far as Price's Landing, and, having obtained the corn, stopped at Cairo, arriving there September 5th. On the day, however, before she got there, Booth, the agent at St. Louis of Halliday Brothers, telegraphing to them that Sherwood, Karns & Co. had failed, had not paid for the corn, and had no effects in St. Louis, directed them 'to stop the delivery of the corn.' Thereupon Halliday Brothers got an attachment, and upon the arrival of the steamer at Cairo, the corn was levied on and taken from the possession of the boat by virtue of the same. Halliday Brothers stated to their agent, Booth, his impression was, that 'they attached the corn.' These attachment proceedings resulted in the sale of the corn, and the payment of the net proceeds by the marshal to Halliday Brothers. Hamilton & Dunnica hereupon brought trespass against Halliday Brothers. The court below charged generally in favor of the plaintiffs; and refusing to charge as the defendant asked it to do, that the defendants were not liable in this action unless they directed the officer to seize the corn, or personally interfered with or took control of it. The jury found for the plaintiff $3436. Judgment accordingly.
Messrs. Albert Pike and R. W. Johnson, for the plaintiffs in error, contended that:
1. That the case was wanting in the essential characteristics of the factors' lien without possession; that there was no previous express agreement to ship the identical cargo in question; no distinct pledge of the proceeds of that cargo to the payment of actual advances; no actual advances made in pursuance of such agreement by actual payment or acceptance of draft before the rights of third parties attached. That the case did not show that Hamilton & Dunnica knew of the existence of this corn, or bill of lading, or draft, but only that one party had been in the habit of shipping, and the other in the habit of paying on consignment.
2. That at all events, Hamilton & Dunnica as against the attaching creditors could have no lien beyond their actual advances on the particular consignment; and that the equitable interest of Sherwood, Karns & Co., in the surplus, was open to attachment.
3. That a bill of lading for corn as shipped at St. Louis on one day, could not give the right of property in corn shipped at a place one hundred and fifty miles distant, on another day. The corn had not been received by the transportation company at all, when the bill was given.
4. That the court had erred in refusing the instruction above mentioned as asked for, viz.: that what the attachment called upon the marshal to seize was, of course, the corn of Sherwood, Karns & Co., and not any property of Hamilton & Dunnica; and as for any notification of the marshal's trespass, if a trespass had been made, the case showed no ratification with a knowledge that any had been committed.
Mr. G. P. Strong, contra.
Mr. Justice DAVIS delivered the opinion of the court.