Ricards v. Wedemeyer

McSherry, J., delivered the opinion of the Court. The appellees, trading as Meyer and Krose of Bremen, Germany, sued the appellants, Ricards, Leftwicli and Company of Baltimore, in trover to recover the value of twenty-five hogsheads of tobacco which the appellees alleged the appellants had converted to their own use. Meyer and Krose, who were dealers in leaf tobacco, gave to M. Driver, of Lynchburg, Virginia, with whom they had had previous business transactions, an order to buy for them twenty-five hogsheads of a particular brand of tobacco called “oblong,” limiting the price to five and one-half cents a pound, packed in hogsheads and delivered at the railroad depot in Lynchburg. Prior to the receipt of this order, Driver had been advised hy his agent in Bremen, that he would likely get it, and he at once began to buy for the purpose of filling it.

In February, 1890, when the order was cabled him, he had purchased some of this brand, and had it stored and marked in a ²¹ particular way to identify it as belonging to Meyer and Krose. On the day following the receipt of the order, he drew on the appellees for three thousand marks, part of the price of the tobacco, forwarded the draft to the appellants, with whom he had been formerly associated in business, and drew upon them for five hundred dollars, against the Bremen draft. The appellants endorsed the draft on Meyer and Krose and had it discounted, and placed the proceeds to the credit of Driver, who was then in debt to them. Meyer and Krose paid the draft at maturity.

On March the seventh, Driver again drew on the appellees .for three thousand marks additional, and this draft was discounted by the appellants as the former one had been, and was paid by Meyer and Krose at maturity. The aggregate amount of the two drafts reduced to United States money was fourteen hundred and eight dollars, and this was used, according to Driver’s testimony — which was not contradicted in this particular —in paying for the tobacco bought by him for Meyer and Krose. There was evidence showing that the appellants were aware that the tobacco bought with the proceeds of these drafts was bought for Meyer and Krose. Owing to the scarcity of the crop there was some delay on the part of Driver in filling the order.

On May the twenty-second, Driver forwarded thirteen hogsheads of the tobacco, and on tbe twenty-ninth, eleven more by the Richmond and Danville Railroad to A. Schumacher and Company, Bremen Pier, Locust Point, Baltimore, for shipment by steamer to Bremen. Each hogshead was marked with the letter K within a diamond, and the letter B following, to indicate that it was intended for Meyer and Krose, Bremen; which mark the appellants fully understood. The invoice sent to the appellees was for tweuty-four hogsheads Virginia tobacco “bought for order, account and risk of Meyer and Krose, Bremen.” Driver gave the appellants an order on A. Schumacher ²² and Company for the twenty-four hogsheads, and directed Schumacher and Company to make out the ocean hill of lading in the name of the appellants as shippers, to avoid delay in forwarding, and to enable the appellants to attach the hill of lading to the draft on Meyer and Krose for the balance due on the tobacco. When this order was given by Driver to the appellants they knew the twenty-four hogsheads, of which thirteen had then been consigned as just stated to A. Schumacher and Company, were intended for Meyer and Krose, and that Meyer and Krose had paid through the two drafts, heretofore referred to, the whole price of the tobacco except two hundred and twenty-five dollars — which latter sum was still due by them.

Under the order from Driver the appellants took possession of the tobacco and held it as the property of Driver, as security for the account current due by Driver to them. Upon their refusal to deliver it to the appellees this action was brought, and a verdict was rendered and a judgment was entered in favor of the appellees for the value of the tobacco less the amount due on it by Meyer and Krose. The appellants offered evidence during the progress of the trial, tending to show that Driver had pledged this tobacco to them in April, and that he gave the order to A. Schumacher and Company in pursuance of that pledge, and not for the purpose testified to by Driver. It is perfectly obvious that the right of the appellants to the possession of the tobacco in question, if they have any right to- it at all, must have 'been derived by them from.

Driver, either by virtue of the pledge of it, or under the order to A. Schumacher and Company directing its delivery to them. If Driver was merely an agent entrusted with an order to purchase, and if he did purchase the tobacco with the money of the appellees for the purpose of filling that order, the tobacco belonged to Meyer and Krose and not to Driver ; and it needs neither argu ²³ ment nor the citation of authorities to show that he had no power to pledge it for the payment of his own deht beyond the extent of his lien upon it. He did not have the tobacco in stock, but he bought it, and he bought it not for himself and not to sell again in the market, hut to fill a specific order and he paid for it with the funds of his principal. As he purchased it he set it apart and marked it, and when packed he placed another mark upon the packages, which both he and the appellants knew was designed to indicate that