Seal v. Zell

Robinson, J., delivered the opinion of the Court. This is an action of trover brought hy Zell & Sons, the appellees, against Seal, Lawson, Kessler & Co., the ap ³⁵⁸ pellants, to recover damages for the conversion of thirty-two hales of cotton. The facts out of which this controversy has arisen are as follows: The appellants and the appellees are manufacturers of fertilizers in the City of Baltimore. Both employed the firm of Goldsmith Brothers, of Atlanta, as-a common agent for the sale of their fertilizers in the State of Georgia; and Goldsmith Brothers made their sales through sub-agents in different parts of the State.

The fertilizers were sold on credit, and payment was secured by cotton notes of the purchasers, payable to Goldsmith Brothers, agents for Zell & Sons, or agents for Seal,. Lawson, Kessler & Co., as the case might he. These cotton notes were for the payment of money with the privilege-to the makers of paying them at maturity in cotton of a specified quality, and at an agreed price. When the sales were made, Goldsmith Brothers forwarded the notes of the-purchasers to their principals in Baltimore, and when they matured, they were returned to Goldsmith Brothers for collection.

The cotton now in dispute consisted of three several lots, known as the Carroll, the Boykin, and the Mobley & Hightower cotton. As to the Carroll cotton, the proof shows that one King received from Goldsmith Brothers a lot of Zell’sfertilizers. The sacks being in very bad condition, occasioned by the acid in the phosphate, Goldsmith Brothers sent King new sacks with the brand of Seal,. Lawson, Kessler & Co. upon them, with directions to put Zell’s fertilizers into these sacks.

This was done, and the fertilizer was then shipped by the order of Goldsmith Brothers to Carroll, and sold by him. As the sacks were-branded with the name of Seal, Lawson, Kessler & Co.,, the notes of the purchasers were taken, payable to Goldsmith Brothers, agents for that firm. After the dissolution of the firm of Goldsmith Brothers, a printed circular was received from W. L. ³⁵⁹ .Goldsmith, with directions to Carroll,'to ship the cotton collected on sales of Zell’s fertilizer, to Zell & Sons, and the cotton collected on the sales of Seal, Lawson, Kessler & Go’s fertilizer, to he shipped to them. Zell’s fertilizer having been put in sacks with the brand of Seal, Lawson, Kessler & Co., the cotton received in payment, of this fertilizer was shipped by Carroll, to Seal, Laioson, Kessler & Oo.

About the same time L. H. Boykin sold for Goldsmith Brothers a ton of Zell’s fertilizer, for which’ he took a cotton note, payable to Goldsmith Brothers, agents for Zell & Sons. The cotton received in payment of this note, Boykin, by the order of Goldsmith Brothers, shipped to Seal, Lawson, Kessler & Oo. In the same season Mobley & Hightower, of Hogans-ville, bought a lot of Zell’s fertilizer from Goldsmith Brothers, for which they' gave two notes, payable to Goldsmith Brothers, agents for Zell & Sons. In payment of these notes Mobley & Hightower, under directions from Goldsmith, shipped twenty-five bales of cotton to Seal, Lawson, Kessler & Co. These several lots of cotton, together with the bills of lading, were received by Seal, Lawson, Kessler & Co., and the cotton was sold by them, and the proceeds applied to the indebtedness of Goldsmith Brothers to them.

Goldsmith Brothers afterwards discovered that the cotton delivered in payment of Zell’s fertilizer, had been shipped to Seal, Lawson, Kessler & Co. by mistake ; they gave an order to Zell & Sons on Seal, Lawson, Kessler & Co. for the delivery to them of the cotton. Demand having been made on Seal, Lawson, Kessler & Co. in pursuance of the order, and delivery having been refused, this action is brought by Zell & Sons against them for the conversion of the cotton. Upon these facts it is insisted that Seal, Lawson, Kessler