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Wilmot v. Richardson.

WILMOT et al. v. RICHARDSON et al.

1. The plaintiffs sold and delivered to one P.. in New York, 1,897 barrels of flour, and P. consigned the flour to defendants, in Liverpool, for sale, through defendants' house in New York, receiving advances thereon, and on other flour similarly consigned, amounting in all to 8,164 barrels. The plaintiffs claiming that the flour had been sold to be paid for in cash on delivery, and on P.'s representation that the defendants were to advance cash for the same, and on other representations of P. alleged to be fraudulent; with knowledge of all the facts, and after the defendants had refused to pay any part of the price due from P. to the plaintiffs, accepted an order drawn in their favor by P. on the defendants, (which order was accepted by the defendants,) and directed them to pay to the plaintiffs the proceeds of sales of the 8,164 barrels of flour, after deducting defendants' advances and their charges, to amount of $10,115.12, P. stipulating, in writing, at the foot of the order, that no further advances should be made to him. Three days thereafter the plaintiffs sued out an attachment against P. on contract, with a view to get the Liverpool proceeds, and charged in their affidavits that they sold and delivered the goods to P., on his promise to pay cash on the delivery. The defendants subsequently sold the 8,164 barrels of flour, and paid the proceeds, over the specified amount of advances and charges, to the plaintiffs, who accepted the same, and gave a receipt therefor, expressed to be "in full of proceeds of sales of flour, as per your acceptance of P.'s order in our favor." Held, that plaintiffs could not subsequently maintain an action against the defendants, either for a conversion of the flour by reason of their having sold it. or to recover the moneys obtained for it, as for so much money had and received by the defendants to the plaintiffs' use. (Before BOSWORTH, Ch. J., and HOFFMAN and ROBERTSON, J. J.) Heard December 11, decided February 16, 1861.

EXCEPTIONS Ordered, at the trial had February 15, 1858, before Mr. Justice WOODRUFF, and a jury, to be first heard at general term. The plaintiffs are John Wilmot, William Gooderham, William P. Howland, and James G. Worts. They composed the firm of "J. Wilmot & Co," were large dealers in 1854 in Canada flour, J. Wilmot was the only partner in New York; John W. Hull, was their managing agent; the other partners resided at Toronto, and conducted the business of the firm at that place.

The defendants are Thomas Richardson, James Spence, and Edward F. Paton. They did business at New York

Wilmot v. Richardson.

under the firm name of "Thomas Richardson & Co.," and at Liverpool, under the name of "Richardson, Spence & Co." At the time of the sale of the flour in question, Samuel Nimmons was their clerk, but subsequently, became one of their firms. The defendants were in the shipping trade; obtained consignments of flour to their Liverpool house; and made advances on the same.

The complaint alleges that one Walter Patterson, in May, 1854, bought of Wilmot & Co., 1,897 bbls. flour for $15,104.87, to be paid in cash on delivery, representing that it was for Richardson & Co., and that they "were to advance the cash for the same." That Wilmot & Co., on 11th May, delivered the flour on board ship, and on 12th May handed ship's receipts to Patterson, "who promised to get the money from Richardson & Co. at once, and to pay over the cash to the plaintiffs." That on 13th May, Patterson paid $5,000, stating that Richardson & Co. "refused to advance the money as they had promised." That Richardson & Co. had already received the ship's receipts from Patterson; and Wilmot & Co., on same 13th May, threatened them to stop the flour, if the cash was not paid according. to agreement; but they replied that the ship had already sailed, and that they need not be alarmed, as the money would be paid. That this threat and response were repeated on 15th May. That J. Wilmot met Patterson by appointment at Richardson & Co.'s office, May 17th, "for the purpose of receiving the balance," when Richardson claiming to be busy, requested him to call at 12 o'clock. That Wilmot called accordingly, but in the interim, Patterson, having been induced so to do by the agency of Richardson & Co., sailed for Europe in great haste, all of which Richardson & Co. then carefully concealed from Wilmot & Co. That Richardson & Co. then offered to pay Wilmot & Co. the balance which might be due from them to Patterson, if released, which offer Wilmot & Co. declin. ed. That Richardson & Co. subsequently made certa in payments, leaving a balance of $7,648.96. That Richardson & Co. got possession of the flour, well knowing all the

Wilmot v. Richardson.

said facts, and contrived this method of obtaining payment of a prior debt from Patterson.

The defendants' answer, first, puts in issue the whole complaint, except the existence of their own firm, and that Wilmot and Patterson called when Richardson was busy, at about 10 o'clock, A. M., on 17th May.

The defendants answered, secondly, that they agreed to advance Patterson $7 per barrel on flour shipped by him to Richardson, Spence & Co., of Liverpool; that between 28th April and 12th May, 1854, he accordingly shipped 8,164 barrels flour, and delivered the bills of lading, &c. to Richardson & Co., and took the following advances:

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That on 17th May, 1854, they accepted Patterson's order .in favor of Wilmot & Co., for the net proceeds of the 8,164 barrels flour, after deducting advances and charges, and that subsequently, on September 13th, 1854, they paid over such net balance to Wilmot & Co., taking their receipt, expressed to be "balance in full of proceeds of sales of flour, as per your acceptance of Walter Patterson's order in our favor."

That Richardson & Co. acted in good faith, in the usual course of business, without knowledge whence the flour was obtained, and that, "with full knowledge of all the circumstances," Wilmot & Co. sued Patterson for the price of the flour.

It was proved that the counting rooms of these two New York firms were very near together; each could be seen from the other.

Patterson began to deal with Wilmot & Co. in April, 1854. He had known Mr. Richardson five or six years.

In the spring of 1854, and prior to May, Patterson

Wilmot v. Richardson.

engaged largely in purchasing flour; purchasing in New York, and shipping to London and Liverpool for sale. Several of these purchases were from Wilmot & Co.

On May 5th, 1854, Hull, the agent of Wilmot & Co., through McKean, a broker, sold to Patterson 1,897 barrels flour at $7.93 per barrel. Total price, $15,104.87. On May 11, an invoice was delivered to Patterson. Wilmot & Co., by order of Patterson, sent 200 barrels on board the Dacotah, and 1,697 barrels on board the Washington. The ships' receipts for these were in Wilmot & Co.'s hands on Thursday, May 11. Hull and Wilmot testify that on Friday, May 12, Patterson first sent his clerk to Wilmot & Co.'s office, then went himself, and finally went with McKean to get the ships' receipts; that Wilmot & Co. declined giving them without the money; that Patterson said "he could not pay unless he had the ships' receipts;" that "McKean said it would be all right, but the bills of lading could not be had without the ships' receipts; we cannot get the money without the ships' receipts; the flour was consigned to Thomas Richardson & Co.; the money was to come from Richardson, and he could not get it without the. ships' receipts." That at length, Hull, acting for Wilmot & Co., in presence of J. Wilmot, said to McKean that they would "trust him with the receipts to go to Richardson's, and that he should bring them back if he did not get the money."

This evidence is relied on by the plaintiffs either as proving that there was no delivery to Patterson at all, or as proving that the delivery was conditional. Patterson, who was a witness for the plaintiffs, testifies differently, and denies all fraud.

The ships' receipts were not returned, and Patterson never made any payment, except a check for $5,000, left for J. Wilmot & Co., on Saturday, 13th May, when he was leaving on a visit to Philadelphia, where his wife and family resided.

Patterson consigned the flour in question and other flour to Richardson, Spence & Co., the defendants' firm in Liver

Wilmot v. Richardson.

pool, through the New York branch, taking up advances from the latter. The whole of this dealing is shown in an account dated May 16, 1854. From these accounts it appears that the advances to Patterson on this particular flour were made on May 9th, three days before the shipping receipts were handed to him. Invoices were received before the 9th. Richardson & Co. made a further advance on the 12th, when they received the bills of lading.

Patterson not having paid for the flour, and having gone to Philadelphia on Saturday, May 13th, without making full provision for payment, Wilmot & Co. became uneasy, and Hull went after him to Philadelphia. Patterson returned to New York on Monday or Tuesday, and on Wednesday, the 17th, at noon, left for Europe by steamer, without prior notice to Wilmot & Co.

Before parting with the ships' receipts, Wilmot & Co. had notice "that the flour was to be consigned to the defendants' Liverpool house" through their New York branch. On Tuesday, May 16, 1854, J. Wilmot called at Richardson & Co.'s, and saw Nimmons. He saw Richardson & Co.'s account of the advances in their books, and received a correct copy of it. He perceived that the advances had been made before he, Wilmot, had parted with the ships' receipts. "I told him," says Mr. Wilmot, "that it appeared to me that he had taken my flour to pay Patterson's debt." Richardson & Co.'s full account of the consignments and advances, as rendered by them to Patterson on May 16, was also, either on that or the next morning, exhibited by Patterson to J. Wilmot, and he took a copy of it.

Patterson's order in favor of Wilmot & Co. on Richardson & Co. for the net proceeds of all their sales was produced. It was in the following words:

"Messrs. Thomas Richardson & Co. will please pay over to Messrs. John Wilmot & Co., or order, the proceeds of sales of 8,164 barrels flour shipped to Richardson, Spence & Co., Liverpool, after deducting advances made me, and

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