Ewalt v. Harding

Tuck, J., delivered the opinion of this court. In deciding the present appeal, we need not pronounce upon the custom in Baltimore, which, it is said, entitles the consignee of the larger parcel of grain, in a mixed cargo, to sell the whole, and account to the consignees of the smaller lots for the purchase money of their consignments, because, as we think, the merits of the controversy depend on a question not affected by such alleged custom. It appears that the plaintiffs below, sold the grain, on the 13th of October 1856, to one Ballard, who was not known to the defendants, as the purchaser, and that they settled with them on the 18th, although the money had not been received. On the 24th or 2olh of the month, one of the plaintiffs called on the defendants, and demanded á return of the money, stating that Ballard had failed, and that an unsuccessful attempt had been made to attach the wheat in New York.

This appears to have been the first information the defendants had of the name of the purchaser. It is contended, on the part of the appellees, that they acted as agents of the appellants, and that having' settled with them before the purchase money for the wheat had been collected from Ballard, that payment Was an advance, Which may be recovered back on failure of the' vendee. Butin this, as in other cases, the agent must act bona fide, and with due care and diligence, and if the record shows that such was not the case, it would be unjust to cast the loss on the appellants. ¹⁷⁰ (Decided June 15th, 1860.) We may here remark that we are dealing with a case between commission merchants, and not with rights and duties, as between commission