Rowland v. Dolby

Fowler, J., delivered the opinion of the Court. James L. Rowland is a broker dealing in canned goods. He filed a bill against the firm of Dolby & Statton in which he alleges that in October, 1902, he sold for them a large quantity of canned tomatoes, among which was a sale on the 30th of that month of 3,000 cases for $5,400 to the Sciota Canning Company; that on these sales there is due him the usual brokerage of two per cent or $198, and the additional sum of $131.30 which he advanced to pay freight and other items making a total indebtedness of $329.30; that he stored with the Terminal Warehouse Co. 850 cases being part of the shipment which had been sold to the. Sciota Canning Company and which that company had refused to take on account of the great and unusual delay in delivery; that for the 850 cases so stored he took a warehouse receipt in his own name and subsequently, for the purpose of getting a settlement,delivered it unendorsed to Dolby & Statton; that they have refused to pay the amount due him and that as neither he nor they can get possession of the goods, he, because he no longer has possession of the warehouse receipt and they, because the receipt is not endorsed by him, he asks the Court to appoint a. trustee to sell the goods and that the proceeds may be applied, after the payment of the charges of the warehouse company and the costs of this suit, to the payment of the debt due him and the balance if any to Dolby 8c Statton.

There was also an amended bill filed in which it is alleged paragraph 3 that on December 18th, the defendant shipped to-him 850 cases of tomatoes which had been entrusted to him by said defendant. But how or why or for what purpose these goods were so entrusted to him by the defendant is not alleged in the amended bill. If, however, we read the latter in connection with and as part of the original bill (Wagoner v. Wagoner, 78 Md. 189 ), it will appear that the goods in controversy were entrusted to the plaintiff to be delivered by him to ²⁷⁴ the Scotia Canning Company, the purchaser. The defendant demurred to both bills and the Court below having sustained the demurrers the plaintiff has appealed.

The singlé question presented is whether the plaintiff is entitled to a factor’s lien. This question leads in the first place to the inquiry whether the plaintiff,' under the facts of this case, as alleged in the bill and admitted by the demurrer, is a factor within the meaning of that term at common law or under our statute relating to agents and factors, Art. 2 of the Code. A factor is defined to be “a commercial agent to whom the possession of personal property is entrusted by or for the owner to be sold for a compensation, in pursuance of the agent’s usual trade or business.” 12 Am. & Eng. Encyl. 628.

And it is a well-settled rule of the common law that a factor has a lien upon goods so consigned to him while in his possession for all commissions, advances and expenditures properly incurred in the relation of principal and factor. Ib., p. 676. And our Factor’s Act (Code, Art. 2, sec. 1), provides that if goods, &c., are intrusted to any person for th& purpose of consignment or sale and who shall have shipped or