Bonaparte v. Clagett

Roberts, J., delivered the opinion of the Court. On March 5th, 1889, the appellee commenced his action in the Court below, by filing against the appellant a declaration in assumpsit upon the six common counts. On March 23rd, 1891, by leave of the Court, the form of action was changed from assumpsit to trover, and an amended declaration filed, containing four counts, but in consequence of the instructions of the Court, the right of recovery was limited to the third count, which reads as follows : “And for that the defendant converted to his own use, and deprived the plaintiff of the possession of the plain ⁹⁴ tiff’s goods, to wit, a large quantity of canned corn and canned tomatoes, together with the cans, in which said vegetables were packed, lying and being on the premises known as Weston, in Prince George’s County, Maryland, and being the whole of the .canned goods upon said .... on the first day of October, 1888.” The testimony in the record discloses that the appellant having a mortgage on the farm of Thomas Clagett of Weston, in Prince George’s County, foreclosed the same, and at the sale thereof became the purchaser. On April 29th, 1887, the appellant rented the farm to said Clagett as a monthly tenant.

There was a canning factory on the farm, and Clagett proposed to carry on the business of canning green corn and tomatoes, but being at that time heavily in debt, and without means requisite to carry on said business, an arrangement was made between Thomas Roberts & Co., commission merchants of Philadelphia, said Clagett and the appellant, to the effect, that said firm were to furnish the money needed by Clagett to pack goods at the Weston cannery ; the goods were to be shipped to said firm, and sold by them on commission, and in order to secure said firm, and the appellant in the- transaction, it was part of the agreement, that the cans in which these goods were to be put, should be placed in appellant’s hands, and “that the goods, as they were canned by Clagett, should become the property of the a,ppellant, at least, the legal title to them should be in him, and that he should hold them for the purpose of reimbursing said firm for its advances; at the same time said firm was to place in appellant’s hands the money that was needed by Clagett for carrying on the canning business, and appellant was to pay it out to Clagett as he needed it; Clagett was insolvent, and notoriously so, at the time, and an arrangement of this character was absolutely necessary to enable him to go on in business, otherwise his goods would have been seized by some of his antecedent creditors.” ⁹⁵ This was the arrangement in 1887, as testified to by the appellant. The appellee testifies that he was in 1887 solicited by Olagett to grow corn and tomatoes to be delivered to the factory at Weston; appellee informed Clagett that he had no experience in growing either corn or tomatoes, and that “he did not exactly know about the money transactions or payments.” Clagett assured him that, “there was no doubt about that, because the appellant would pay everything he gave a draft for, and pay all bills which he approved ; that appellant had made an arrangement with Thomas Roberts & Co. of Philadelphia, to take the product of his pack, and everything that appellee brought them would be paid for by draft on appellant, who would accept the same.” The appellee accordingly raised corn and tomatoes for that year, and delivered the same to the factory at Weston, which amounted to some $1700. Checks were given at different times by Olagett on appellant in payment of the whole amount due appellee, and they were all honored. Everything came to the factory marked with appellant’s name, and everything left there marked in the same manner.

A notice was stuck upon the warehouse door at the factory, saying, “that all corn must grade either Weston brand or Meadow grades, if I am to pay for it,” signed “0. J. Bonaparte.” .A similar arrangement was entered into for the year 1888, modified however, in two respects : First, that Roberts & Co. were to place in the hands of the appellant, upon five days notice, whatever sums of money should be, from time to time, required for the purpose of carrying on the business at Weston. Secondly, that the appellant should personally see that the money which Roberts & Co. placed in his hands, should be used for the purpose of packing corn and tomatoes at Weston. ⁹⁶ The appellee’s testimony further shows that Olagett called upon him in 1888, and again requested him to grow corn and tomatoes for the factory in the same way he had done, and upon the same terms as in 1887, which appellee agreed to do, and accordingly did grow corn and tomatoes, and delivered the same to the factory at Weston, and which were intermingled with other goods of like character of the appellant, between August 10th and September 29th, inclusive, to the value of $2647.09, of this amount appellee was paid the sum of $950, in drafts on the appellant, drawn by Clagett at various times for different amounts, and in favor of the appellee ; Olagett provided appellee with seed corn, tomato seed, and other items of account which, when credited, left a balance due appellee of about $1543.00. The appellant testifies that he paid out to farmers in 1887, from time to time, money for a good deal of stuff, which was not grown on Weston farm, although he did not know it at the time, and paid no attention to what the drafts were given for.

For the year 1888, the appellant, at the suggestion of Clagett, signed a number of written contracts with different farmers, agreeing to be responsible for the payment of the goods which they should furnish to Clagett. Appellee first learned about the written contracts in June, 1888, before corn-planting time, when Clagett told him that the old planters had none, that they were only intended for the new planters. Clagett showed appellee one of the contracts in blank, signed by appellant, and offered to fill it up and give it to appellee, but it was mutilated and torn, and he declined it; Clagett assuring him, however, that he would be paid in 1888 as he had been in 1887. The appellee continued to deliver corn and tomatoes to the 29th of September, inclusive, and only ceased doing so, when he ascertained from appellant that he would not pay him for the goods which he had delivered ⁹⁷ The goods which had been delivered at Weston had been processed and placed in cans provided by, and the property of, the appellant, and in the early part of October, when the appellee called upon the appellant at his office in Baltimore, and demanded payment for his goods, and was refused by the appellant, the goods, in their canned state, were still at the factory at Weston.

It was there that the appellee requested appellant to give him the goods, or as stated by the appellant: He then asked me whether I would authorize Mr. Tom Clagett to give him enough of the canned goods, which were then down at Weston, to cover his claim. Appellant replied, that “he held those goods virtually as trustee for Thomas Roberts & Co., and that he had no right to let anyone have them.” A statement of the aforegoing facts is essential to a proper understanding of this controversy. The only exceptions which the record presents, are— First, to the refusal of the Court below to grant appellant’s motion to exclude from the consideration of the jury the testimony offered in reference to the written contracts with third parties, signed by the defendant, the same having been admitted subject to exception. Secondly, to the granting of the appellee’s two prayers, (the first of which was granted subject to the sixth prayer of the appellant,) and the rejection of the appellant’s second, fourth, fifth and seventh prayers.

The appellant excepted to the granting of the appellee’s prayers because no evidence had been given of the fact stated therein, that the appellee was induced to contract for the sale and delivery of the corn and tomatoes mentioned, by the false and fraudulent representations made by Thomas Clagett of Weston, sufficient in law to authorize appellee to rescind said contract, and also excepted to the appellee’s second prayer, because no evidence had been given that appellant had finally dis ⁹⁸ posed of the canned goods mentioned in said prayer before the institution of this suit. It is very clear to us that the appellant has neither contemplated, nor has he participated in, any fraud intentionally or knowingly in connection with the transactions hereinbefore stated, but he has, in failing to restrict and control Clagett’s operations as he had promised Roberts & Co. to do, made it possible for Clagett fraudulently to misrepresent the true state of case to the appellee and other farmers, who were delivering corn and tomatoes, under which the canning business was being conducted at Weston. There is no pretence that the appellee had the slightest knowledge of the character of the arrangement between Roberts & Co., Clagett and the appellant, and he was fairly entitled to infer from his experience in delivering corn and tomatoes to the factory in 1887, during which year all of Clagett’s representations had been fulfilled, and the last farthing due for corn and tomatoes delivered to the factory had been paid by drafts on the appellant, that the representations of Clagett concerning the business for the year 1888, would be carried out in good faith. In fact, the early season of 1888 indicated that his statements were to be fully realized as in the previous year, since Clagett in paying appellee for his goods, pursued the same course which he had taken in 1887, and continued to pay the appellee with drafts on the appellant, which were promptly accepted, until the early part of October.

We do not think it is any answer Tor the appellant now to say: “If you have been misled, it was simply because you did not choose to inquire, what Mr. Thomas Clagett’s relations with me really were.” The appellee was not misled in 1887, for the appellant made good every promise of Clagett to the appellee, and in 1888 he did likewise until the season had nearly closed. ⁹⁹ By the very terms of his contract with Roberts &. Co. for 1888, the appellant agreed, “that he would personally see that the money placed in his hands should be used for the purpose of packing corn and tomatoes at Weston.” Yet the appellant says in his testimony: “I had no representative at Weston to see that Clagett was applying this money properly. The reason of Messrs. Roberts & Co. for insisting that it should go through my hands was, that they.were unwilling to trust Tom Clagett confining his business to the class of goods they desired him to pack.

They feared he would go into outside speculations, as he had done the year before, packing apples and lima beans, and things of that kind, but they did not in any of my conversations with them, or in any of our correspondence, intimate to me in any way, that they doubted his personal integrity as to the money. A considerable amount of money was paid out to growers with whom I had no contracts, because Mr. Manning, who acted for me during my absence in Alaska, did not know what the drafts Mr. Clagett drew, were for. In the case of the appellee, for instance, if it had been known that the drafts drawn up in his favor were intended to pay for goods from a person with whom I liad no contract, they would not have been honored. I paid whatever drafts were drawn on me without making enquiry to see whether they were drawn for proper purposes or not, until circumstances occurred which caused me to doubt Mr. Tom Clagett’s honesty.” It is therefore quite manifest that the appellant knew in 1888 that Clagett had not observed his engagements with himself and Roberts & Co. in the transactions of 1887, and it is equally clear that Clagett, through the appellant, made good to the appellee every promise made to him, as to how he would be paid for whatever he should bring to the factory.

There is nothing in the agreement between the three parties that prohibited Clagett from buying corn and tomatoes ad libiium, nor is there the slightest ¹⁰⁰ suggestion that he was to be restricted in his purchases of corn and tomatoes, but to the contrary, he had in 1887 purchased from whomsoever he thought proper, and the appellant without hesitation paid his drafts. The appellant testified, “that it had been the understanding, at least, my understanding of the matter, and I supposed the understanding of everybody, that all that Mr. Olagett was canning at the factory in 1887, was the produce of his own farm." Neither Olagett nor Roberts was called to state their understanding, but Olagett, who has spoken through the appellee, appears to have entertained an entirely different understanding as to his authority in the premises. In the season of 1887, the factory was operated at Weston under the arrangement between Roberts & Co., the appellant, and Clagett, as already stated, and a number of farmers, among whom was the appellee, delivered their corn and tomatoes to Olagett at Weston, and were paid by drafts upon the appellant. By the agreement for 1887, it had not been contemplated, so far, at least, as the appellant understood, to can aipy corn and tomatoes, other than that which might be grown on the Weston farm; but Olagett did purchase from other farmers, and canned considerable quantities of goods other than that which had been grown on Weston farm.

The private arrangement between Roberts & Co., the appellant and Olagett, by which he was to be supplied with funds, as already stated, was not made known to the appellee, nor to the farmers, who were about to deliver their goods at Weston, but Clagett placed his own construction upon his relations with the appellant, and informed the appellee that the appellant had agreed to start him in the canning business, and back him in running it, and would pay anything for which he might give a draft. Olagett’s statements were fully verified as to the year 1887, and partly as to the., year 1888. ¹⁰¹ The allegation of the third