EICHEL 11. SAWYER.

845

et al.

EICHEL

et al.

V. SAWYER

(OircuU Oourt, D. Kentucky. November, 1890.)
1.

ACTIONS AGAINST PARTNERSHIP-BuRDEN Oll' PROOll'.

Where suit is brought against defendants as members of a partnership, and one of them denies his connection with the firm, the burden is on plaintiff to snow that he is a partner.

2.

CONVERSION BY BROKERS-POOLING.

The act offactors in putting into a pool tobacco which has been consigned to them for sale on commission is not a conversion of the property where the consignors are at liberty to witndraw the tobacco from the pool, but acquiesce Jin the factors' action when it is brought to their knowledge. A constrnctive conversion by factors of property consigned to them tor sale on commission is waived by the action of the consignors ,in treating the property as still their own, as by letters expressing their gratification at certain sales made 'by the factors. ' Where factors have made advances on property consigned to them for sale on commission, ,such property is thereby removed from the absolute control of the consignor, and the factors are invested with a discretion to deal with it so as to indemnify theIDselves first, provided that such dealing is in good faith as respects the interest of the consignor. Where ,the market for such g,OOds is compo,sed of a singlebU,y.,,er, in ordertoc,harge the factors with negligence, -in not selling it, must be !Jhown that this buyer made them a' reasonable offer far the goods, sufficient to cover' ,their advances thereon, and that they refused it.
· '

8.

SUrE-CONSTRUCTIVE CONVEBSION-WAIVEB.

·· FACTOKS AND BROKERS-AUTHORITY-ADVANCES.

5. SAME-NEGLIGENCE-EvIDENCE.

5. ACCOUNT STATED-ADVANCES-FACTORS.

Where factors transmit to their accounts current sbowing the amountof advances made on goods reooived. and the consignors fail to point out errors therein Within a reasona1;lle time, their silence is an assent to the correctness of such accounts.

At Law. This action was heard before the Hon. HOWELL E. JACKSON and a. jury. The plaintiffs, Eichel & who were dealers in tobacco a.t Evansville, Ind., sued Sawyer, Wallace & Co., who were commission merchants in the city of New York, alleging that they had shipped to the defendants divers hogsheads of tobacco upon consignment, for sale for their account; that, in violation of their duty as commission merchants, the defendants had agreed with divers>other commission merchants in the city of New York, and put this tobacco with the tobacco of the other commission merchants into a pool, under an agreement that none of it should be sold except under the direction of the pool; and that, in this way, the defendants had converted the tobacco of the piaintiffs to their own use, and were responsible for its value. The plaintiffs further claimed that the defendants had negligently failed to sell their tobacco at times when it could have been sold for a reasonable price, and asked damages upon their whole claim in the sum of $220,000. The defendants answered, denying the conversion, ana. denying negligence, and alleging, by way of counter-claim, that they had advanced to the plaintiffs certain suins, and that there were due to them from the plaintiffs other sums on account of storage, insurance, and commission, making anilldebtedness from the 4>lll.intiffs to them of $186,541. At the conclusion of the plaintiffs' evidence the defendants declined to put

in any evidence, and rested their case upon the testimony introduced by the plaintiffs. t " ' Hargis &: Eastin, forplaintitfs.' M. H. C<trdozo l , CharUs 8"'GruQQS, and Humphrey &:Davie. for defendants.
li

'I

JACKSbN,J., (charging jury.) The plaintiffs in this case purchased
tobacco at Evansville, Ind., which they shipped from ,time to time during tha'yeal's 1884 and 1885,to the defendants, Sawyer. Wallace & Co., commI$&Joti inerchantl'lQrfactors in the .city of New York. The course of dealing between the parties, asexplll.ined by the plaintiff Eichel, was for & Co. to makEl advances to the plaintiffs on these cOllsignlllellts. The' plaintiffs sue new to recover of the defendants for 1;B49 1' rrogsbeads of tobacco,whichthey claim Sawyer, Wallace & Co. converled or appropriated wrongfully, or negligently failed to sell when they cotild"ha.ve:sold b)' the exercise of reasonable diligence for prices f thatwou14 have theplailltiffs, as they, claim, $220,000. That is the clllimplaintiffs make against the defendants. 1'hey state in their petition that besides Sawyer and Wallace and another member of the firm,whosenameldo'not remember, they also sue George A. Newman ': Newr,naJ:;i,puts jn a plea, and denies tba,t he was a partner in the defelldants' dfirni,the firm of Sawyer, Wallace & Co. It is for you tp orlthat ,issue A. Newman was a partner or not" 'the plea dtlllyingthat he was a partner puts the burden of proof up6rr the plaintiffs." ;He did correspond. as it appears, for the firm, but the plaintiffs must satisfy you, by a clear preponderance of evidence, that he was an actual member of the firm, and, if they have not done so, you' must/return a verdict on this branch of the case for JS'ewman. . " , · . Theplq.intitrsrcl,aim, ,!;lS I:say, $22(),OOO damages for the conversion or OJ; tQ sell 1,549 'hogsheads of tobacco. The decllj.irp, and they received in all from tQooccoc1uring the two seasons of 1884 and 1885. reply state that they shipped to the de)lpgsheads,o( tobaqco. ,There is, therefore, as you will perQai\f6,a diBcrtlpaneYrQ(JUlOgsheads of; ,tobacco, has not been exthe eviqencEl,'!I9, far, as it has been brought to the attention of !.Mt;G.Qurt. burden Qn,tllat on the plaintiffs to show.that 2,58(7 hogsh6llds of tobacco, instead as claimed in, the say in,their answer that they sold 1,125 of tQq/lcco, on ,hlJ,nd at the da,te of the suit they hold fQrthe account .()f" · . itisfo!youtodetermine from th,eproof Whe,tPl;lf P1,';llOt; ,that,thllY accounted {or every ,f>;eing hogllpeads p( ,The accounts aut;rent they will ,also allow what they had on hapd CioDltnellced. hogsheads of tobacco. the you that it is

-':;';

'EICHEL' t1.' SAWYER.

847

bent upon the plaintiffs to slib\\' that they had that excess of 11 hogshElads more than admitted by the defendants. The court cannot recollect, but you· may be able to do so, some' evidence on the point that they did have the extra 11 hogsheads. Mr. A.Lowenthal, Jr., puts the number of hogshead!.! shipped to these defendants from November, 1884, to September, 1885, at 2,174.hogsheads. The defendants admit, and, if there no proof of a larger'!iumberiYou will take their statement as correct, that they had received 2,526 hogsheads. If there is no proof on the part of the plaintiffs that theyhad shipped 2,637 hogsheads, you will take the statement of the defendants that theyreceil'ed 2,526 hogsheads as the correct statement of the number of hogsheads shipped and received by them. Now, gentlemen,in reference to the relations bf these parties as consignor and oollsignee, shipper and principal and agent, and the rights, duties;" and obligations arising out of those relations, court will give you some general instructions;" but in all that the court will say you will have to look clbsely to the evidence to' apply these general principles. When a consignment is marleto an agent or factor for sale simply, there is a duty upon the part of the agent or factor to exerCise diligence in the discharge of the duty that 'he undertakes to perform. The general principle is that, wheneveratly man uhdettakes to perform a work or render a service, he must be considered as bound to brin/t to the discharge of that work or lhe performance of the service theskm and diligencethat is necessary to its proper performance. That is the general principle. So, when goods are :shipped to ·ltn agent to sell, the agent is'Qnder obligatiohs, upon receivingtne "goods, to exercise due diligence in tbe'effort to discharge that duty. Hil()f, course mustexercise or perform his functions faithfully':and honestly, blit, outside.of that, over "auda-bove faithfulness and honesty .on his' part, he is required by the law to exercise due diligence to protect and to advance the interests of his principal. He must not be guilty or negligence in the dig.. charge and performance of his duty in the making of sales. Now these terms,"diligence"and "negligence" need some "Diligence" is a relative term, to be judged of according to the nature of the subject to which it is to be directed. "Negligence'" is a relative term, more or less. It may consist of omission, or it may consist of commig.. sion. "Negligence" is the 'failure to do what a reasonable and prudent man ·wouldhave dona under the circumstances of the situation, or the doing of something that a prudent and reasonable man would not have done circumstances. So you see it has the two aspects of omission or commission. Now, as I said, "diligence" is a relative term. Whether ainan has exercised the diligence required of him by the'law in discharging an agency or not must be determined by all the considerations surrounding the agency. We must look at the circumstances, and, as laid'. down' by Story in the section cited a while ago, we must, in order to determine whether proper :diligencehas been exercised or not, look to the: ;general customs of the trade. We must look to; the course of business as to :thatparticular line or character of trade,' and

FEDERAL REPORTER,. vol.

44.

the common habits of business in the particular matter or article. We must Jook to the sit1;lation of the parties, and the way that the principal and agent deal with each other. Now those are the general duties, and every must be determined upon its special circumstances,-its specialsurroundings. You ,would. not expect a commission merchant to whom :pE;lrishable articles, such as fruits and vegetables,were consigned, to exercise or require the same amount of. indulgence and delay in making sales as you would in respect to lumber, or SOme other article that was not perishable. You can see that, from the nature of the article itself, from the nature of the business, from the course of trade, from tpe customs of trade at· the point to which the shipper has c<lnsigned his goods for sale, that which might meet the requirements of the law as to <iiligence under one state of facts and circumstances would not be sufficientund«;lr differentc(}nditions. All that must be looked to. You can see that dUigence in respect toone article might require that an expeditious sale should be made, that the agent should hurry the article on the mar,!,{et, wpile in respect to another article he might delay, or might exercise more discretion, and take more time. So I say you cannot, by one universal standard or measure, detenuine what time is rea· sonable.,and what is not for the performance of an agency, without considering the market, the course of business at that market, and the course of dealing between parties. The court has been requested to instruct you that the mere fact that the defendants went into the pool of the 3d of December, 1885, and that they put 930,hoglSheads oithe plaintiffs' tobacco into that pool, was, in and of itself, under the evidence il'l this case, a conversion of the plaintiffs' property by defendants. That is not ,the law as applied to the facts in this cafle. ; In reference to that pool, the court wishes to call your attention to lj. few things. It is distinctly stated by every witness introduced on the part of the plaintiffs who had any knowledge of the subject, lind by Mayo, Seibert, and Pollard, that all or any of the customers oBhe syndicate whose tobacco was incorporated or included in that pool had a right to withdraw it. It is further stated by these witnesses that they reserved to themselves the right to sell that pooled tobacco to anyone else except Raynes Bros. &. Co., the agent of the Spanish contra,ctor,De Campo. Mr. Pollard further states that 3,200 hogsheads which were purchased by the poolin the west were not incorporated in the pool, and were notincluded in the subsequent sale ·of 10,000 hogsheads to De Campo, conducted through the agent, Bock. Now in that connection, inasmuch as it was the distinct understanding of all these that formed the pool that the customers had a right to withd.raw their tobacco {rom the pool when they desired to do so, the question is not material in this ease whether defendants notified the plaintiffs that 930 hogsheads of tbeir tobacco had been put into that arrangement, provided the knowledge came io plaintiffs in any other way, and they got all the information about it that they needed and What is the evidence on that point? The court feels at liberty to comment .upon this evidence, but in doing so you must understand that the

EICHEL 'l1. SAWYER.

849

court does not mean to usurp your province, and does not mean in thus referring to the .evidence that you should conclude that the court is correct. But the court has to watch the evidence closely, in order to apply the law of every case. Col. Martin, the last witness for the plaintiffs. stated in your presence this morning that he knew when the pool was formed, and that within a day or two thereafter he notified the plaintiffs of its formation, early in December, 1885. Mr. Bretano, another witness for the plaintiffs, tells the court and jury that he knew that plaintiffs heard of it early in Depember,-by the middle, at least,at Paducah. One of plaintiffs teUE you that he did hear of it at Paducah. This plaintiff tells you, furthermore, that he heard of it through a Mr. Simmons at Evansville, and the letters of plaintiffs, produced by the defendants, and introduced in evidence, disclose a state of facts that put it beyond question that they did ascertain the existence of that pool, and wrote the defendants on the subject on the 24th of December, 1885. The letter is in evidence, and, if the court in giving its substance should fail to give it correctly, counsel on either side will call the attention of the court to the letter itself, and it will be read. Whatever Bretano and whatever the plaintiff Eichel stated on the stand as to the time he had information on the subject, he writes to the defendants under date of December 24, 1885, approving of the pool combination, and expressing the hope, or the doubt, rather, whether they will be able to maintain it, and encourages them to proceed in the effort to maintain it. He fears they will not be able to hold out. Eichel learns about that time tbat defendants or the pool have an agent in the west buying tobacco. li.e further writes under date of December 26, 1885, asking for particulars. To that letter Newman responds under date of December 29, 1885, giving him the outline of the pool, and, under date of January 9, 1886, he says to these defendants that he had all the information he desired. Now, gentlemen, with the right to withdraw this tobacco at any time from the pool by the mere statement to these agents of their wish to withdraw it, if you find from the evidence that plaintiffs, with the knowledge of the pool, approved of the combination, and acquiesced in their property remaining in that situation, and made no demand upon these defendants to withdraw it, they cannot claim that it was converted by the act of putting it into the pool. The court instructs you that it was not converted by the defendants under such circumstances so as to give these plaintiffs the right to call upon defendants for the value of the tobacco at that time. When an agent transcends his authority, or deals with the subjectmatter of his agency out of the usual course of business, it is the duty of the principal, when it is brought to his attention, to ratify or disaffirm the agent's action, and, if he does not disaffirm promptly, or within a reasonable time, he must be treated as acquiescing in what is being done, especially when it is being done in good faith, and for the promotion of the principal's interest. So, if you find these letters as written and as stated by the court, you will find that plaintiffs acquiesced in that pool arrangement, and therefore cannot claim a conversion or amisapv.44F.no.12.-54

FEDE:RAl.-REPORTER,

vol. 44.

proprii:ttionuof' this property by -defendants for the act dfputting 930 hogsheads of tobacco into that pool. ,'Other letters of plaintiffs and their subsequent with'the tobac(',d sl'eputinevidence as corroborative of 'such acquiescence; that on October 14, 1887, in Eichel's letter from Paris?'he says', in substance"that'he'did not look for any sales until the 'ne'xtyear: In his next letter, of the 7th of January, 1888, he says he does"not favor ,'the, policy of pressing his lugs on the market. In the subsequent lette'ri.Qf the 14th of January he fixes or designates the price 'that will, bring him out at seven cents per pound, to which the defend-·, 'aiits replied, under dateiOfthe January, 1888, that,while they note'ibis views, and concur 'in 'his hopes and expectations'tha.t the market \viU ad vance; they want him to Uliderstand that they are not to be controlled, by his tbdng that price, \mleas he will· make further advances'or margins that will 'be necessary for their protection. Counsel for Jplaintiffs have commented upon that letter, and deny- the right of the defenclantstomake' sudb' a reply, or assert such control over the tobaccoJ"That brings the court UP. w'an()ther question, ttS to the relations, rights',"duHes, and obligations of: these parties 'to each other under the facts6f thii>'Case. , Thertiere oonsignment'toan agent to sell imposes upon that agent the tbthe interest ofhis'consigrior,and of per.forniing his and disclill:rging' hls rlutieswithin a reasonable time. 'Reis bonndi, tl:sagenera.!' role, to obey the instructions'ofhis principal. 'That But that rule 'is changed; or very materially modified,when the' fa:clor, :hasmade advances uPbfi a consignment. ,When a 'factor makes advances upon a consignment, unless at the time M the' cbhsignment and making thead\'allCes there is some statedagreementbetwEl$l1 the consignor "and consignee that the .consignee shall hold for a fixed iperiod, or for a fixed price, the control as to the ttmeand mode of'M.Ie passes out of the hands of tbe consignor to those af'the factor; It,istme that the factor muat'Rct in good faith. It is true thatihe BlUst ex'ercise the right that is then given him to control, toalargEJ tJ!lttent,the<sale of the property, and its management and its price,'ingood faith'; so as not to abuse the trust, notto sacrifice the consignorjbuf, after he has made advances 'upontheproperty consigned to him withoutany:ag:reement as to the time of sale, or price at which 'sa.leshould, be't11ildej the factor cannot be controlled by subsequent orprincipal. He hll.sthe right to look to his own protecders ti(m, looking honestly and looking reasonably to his own He has It : property in the thing or article that is consigned to him, ahd on which he makes advances. You may call it a "lien," or a. "special pF6perty;" or a Hspeeial interest,"-no matter what. Hehas the right to' possession" and' he has the right to control the property for his interest and for his indemnity. Fairly, I 8'3.1; honestly and reasonably. 'The factor has the right to do that, and especially has he the ,right to deal with the consignment with a view to his protection and indamnify when the consignor is insolvent, or is unable pecuniarily to meet the demands of the agent or factor for advances made to him. Now, I say to the jury on the evidence in this case that there is no
I ', .

EICHEL V. SAWYER.

851

actual.conversion or appropriation of this property by the defendants. Hav,e the defendants exercised diligence to make sales, or have they been guilty of negligence, sueh as would impose upon them a liability for this tobacco any given period? In passing upon this ppint you must look carefully to the course of trade and course of business in regard to this particular article in the city of New York. The plaintiffs produced a them by under date of December 1, 1885, in they were informed distinctly that there was only a "one-man market." In Newrpan's reply to Eichel's letter of the 26th of December, 1885,' it is again stated that the market for lugs and for tobaccos suitable tothe Spanish market was a "one-man market;" that there was no buyer but Reynes Bros. & Co. Now Mayo, Seibert, Pollard, and every witness who has been introduced before you testifies to that fact, that while they D:,\l;lde quotations as to the pi-ices, they could not obtain those prices on the ,J;llarket. They had to wait the movements of the one-man buyer on the one-man market. Mayo's statement in his deposition, which is here at hand, is that were. the quotations, but they could not get t11.e prices qupted for lot of tobacco at any time." They put their samples out, !lod waited the movement& of this one. Spanish buyer. He bouKht depressed the market as lots here. and there, as he thought proper, far ashe cPuld do so, and that led to the formation of the pool. It is not material for the court to say whether that pool was contrary totbe law af New York or not, and the court does not think proper to gointo that. If the plaintiffs acquiesced in it, they cannot claim any benefits arising out of its Now I say you must look to the nature of mark,et. What would be negligence an agent in selling a bale of cotton, for which there is a constllnt demand allover the world, or from numerous' sources, would not perhars bellegligence in a factor undertaking-tf>.sell a hogshead of tobacco which had but:one market, and one man in ,the market doing all the buying.. I say is what you have to loqk to in· order to pass upon this question, as to whether there was negligence:.Qlwhether there was diligence' on the defimdants' part. It was nQt to'_be expected or requited of defendants that, made advaijces upon this tobacco, they could recklessly force it on these tIle ma.rket, and sacrifice their advances. The plaintiffs had rights which they co'ill4 have exercised;if they had thought proper, whenever they were dil;lsat.isfied with the holding of the tobacco, or the delay in selling. They Gould have repaid to these agents themQney that they had advanCf?d to then}" with the proper charKes, interest, storage, etc. "and reclailll;eJ control and possession of their tobacco, and disposed of it as they pieased ·. But the defendants were under no obligations to sacrifice by a forced sale, especially when the plaintiffs were from time to time advising against pushing the lugs on the market. You IIp:U;Jt, therefore, in passing upon this q,uestion which the court does refer to you, as to whether delendants have been negligent. in this transaction, you must look to the state of the market, and the course of dealing with respect to this particu'lar kind of tobacco. C9uld thE" in thi'Scllse'havemade a sale which would have protectedtMhlselves, as ille the p,l,ajotiffs? Wll#e,is

at

852

FEDERAL REPORTE:It,

vol. 44.

'.

of that? Is there any evidence of 'it? Is there any evidence-and, if there is, the court has not seen it-that they neglected to sell when they had an offer for' this' tobacco? Is there any evidence that they pushed in preference their own tobacco; or other people's tobacco, on the to the plaintiffs '? The court has not heard it. The court has heard no evidence in this case to show that they either waived the exercise of the rights they had, or that they neglected to sell when an opportunity was offered: In that connection it is proper to refer to the evidence given in by the plaintiff Eichel as to what occurred on his first visit to New York after he had been notified about the pool. He had an interview with Newman in the defendants' office. He had, he says, at that time an offer for the tobacco at 6! cents or 61 cents, but that he did not tell NeWInanthe price that had been offered. In his second interview, some weeks afterwards, on his second trip to New York, he says he did tell Newman who the proposed purchaser was, and on that second trip he stab'1sthat he said to Mr., Wallace, of the defendant firm, that "the course you arepUl:suing will prove ruinous, if continued, to ,the owners of tobaceo." There was' no demand to take the tobacco out of the pool. That did not constitute a demand to take it out of the pool. So, too, in refel'e11ce to aU the attempts or negotiations about money arrangements through CoL Martin and the house of David Dows & Co., Lowenthal & Co., and Rice and others,to enable plaintiffs to release the tobacco, not from the pool, but from the possession and control of defendants. That ddes not amoUlit to anything. If they wanted to take the property out of tlie hands of the defendants, as the court has already intimated, nothing short of tendering defendants the money due them would have put upon them the duty and obligation of turning the tobacco over to plaintiffs. It is not pretended that that was done. Now;' gentlemen, the court has gone far enough into all this evidence. Thecdurt instructs you that the burden of proof lies upon the plaintiffs to establish their allegations of conversion and negligence. They have not; in the judgment of the court, shown any conversion or appropriation of'thisproperty bythe defendants so as to make them liable for its value. Whether defendants have exercised reasonable care and diligence, such as prtidlmtand reasonable ,men ought to have e.xercised in affecting a sale, or whether they have done in the matter what a reasonable and prudent man ought not to have done in making sales, is for you to determine as a matter bf fact. In determining it, you must bear in mind, as the court wishes to impress upon you, the course of business, the habit of that particular market,the dealers in the tnarket, the opportunities for selling, and whether they neglected to avail themselves of an opportunity to sell at'a priCe that would save themselves, as well as advance the interests of the plaintiffs. ' ' , The court is asked by counsel for plaintiffs to give this instruction, which the court gives: the jury believe frPTll the evidence that the defendants received plaintiffs' tobacco with the on the part of defendants to sell same, then care and prudence in selling, and it was their duty to m'aking efforts to selI. said tobacco within a reasonable time from its delivery;

EICHEL V. SAWYER.

853

and, if defendants failed to exercise such care. and discretion, the law Is for the plaintiffs, and the jury should find for them the highest reasonable value of said tobacco prevailing at any time during sucb failure. " The court has given you that already in substance with the <l,.ualification, and with this proper restriction, that you must regard the situation of the parties, you must regard the nature of the article, you must regard the character of the market, you must regard the course of dealing in that market with this particular article. Were there buyers to whom the defendants could go and say, "Take this property," at this price or that price? Were there? If there were, it was their duty to make the effort to sell to them; but if there was a one-man market, 118 the proof introduced shows, and you believe that proof, and that they had to wait, as these witnesses state, for the approach of that buyer, then to ma.kethe defendants guilty of negligence it would have to be shown that the buyer did approach them, and offered to buy this particular tobacco at a reasonable price, and that they did not sell. The defendants have put in a counter-claim, and it is admitted in the answer, that the defendants advanced one hundred and ninety-five sand and odd dollars to the plaintiff. They now claim that, after proper credits, and transferring from the old account of 1884 a balance of $8,888.98, that stood to the credit of these plaintiffs on the 1884 account, is balance due them pf $186,541 up to the 15th of January, 1890. N6w, gentlemen, in reference to that counter-claim. In 1.885, 1886, in May, 1887, May, 1888, and on the 13th of May, 1889, the defendants n;n:dered plaintiffs' accounts current showing the amount the plaintiffs owed them for advances, insurance, commission, and storage, One of these accounts, perhaps the account of 1886, the plaintiffs the correctness of; but, whether they acknowledged the correctness of these accounts not, when they received those accounts, and did not, in .a reasonable time thereafter, point out errors, or deny their correctness, the law treats their silence as an admission of their correctness. Accepting accounts current without complaining, without a statement of errors, is an acknowledgment by the debtor of their correctness. In addition to the amount stated in these accounts current, defendants state from time to time, running through the years of 1885, 1886, 1887, 1888, and 1889, the number, of hogsheads of plaintiffs that were still on hand. The court instructs you, as asked for by counsel for .defendants on that point, that plaintiffs have acknowledged tqE<reby their indebtedness to defendants for the amount stated in these accounts current, which, with interest up to 15th of January, 1890, amounts to the .Bum of $186,541, which should be your verdict for defendaI}ts on their . One other point which the court thinks proper to call your attention to. If thllre had been a conversion, it would have been, at the most, a constructive conversion, which the plaintiffs could waive or not. But when the plaintIffs get statements from time to time for 1886 and J3equently, and when they express their gratification at the De Campo £ale, as ill their letter of April 30, 1886, they must be treated and considered as dealillgwith the tobacco as. their own, and so on through

854::

FEDERA.L REPORTER,

.vol. 44.

subsequerit periods;illrill 'in subsequ.ent letters, they trea.t the tobacco as tI:1eit- 'own, andtllej go behind Such conduct on their part is a waiver' tifitiy l'ightthey had to claim as for a constructive conversion of the:property antecedent to the dates of those letters. You must deal with these transaCtions, gentlemen, as the parties dealt Men's after-sights are better than their forewith.,them sights, always. We cannot judge of them by what they may say now sowell as we canjudge' of them by contemporaneous current transactions and statements of. the parties while the businesswRs going on. Lookingto those, we cannot find an actual or construotive conversion of this property. that the plaintitfshave not waived under their own letters and course of dealing between them and their agents. You will return your verdict,if you find for. the plaintiffs, as the court has indicated as to the amount.ofdamagethey have sustained because of negligence upon the part,lOf. the defendants :iu 'not selling tobacco. You will return, as a matter of course, a verdict for the defendants for the full amount of their claimrwith interest or not. at your' discretion, after the 15th of January, 1890. You will also make a return as to whether Newman was apartner. Make a separate return as to that.

Mr_,Hargis. Though' they mayJ.lbe waived the constructive conversion,that does not' relieve the defendants from the performance of duty in ·regatd to this tobacco; Not at all"'Plaintifi's may waive a constructive conversion. considers, from these letters they have waived any conAs structive conversion, if any such was committed. There was' no actual appropriation of this property by the defendants to their own use. If thete was any constructive conversie-n, plaintiffs have waived it by these letters-and subsequent deallng with the property. If, however, you find the· dflfendants guilty of negligence in not effecting a sale that they ought to have effected, looking to their own interestand their own protection, asweH"llsthe right of the plaintiffs,-their own protection first, their own indemnity first, and the reasonable rights of the plaintiffs Jlfterwards,if theyha¥enegligentlyfailed to, discharge their duty in tilaking a sale, that is a:'different questionja.rid if you tihd them guilty of such neglect, if you 'believe' from the'evidence, under the chamcter of market and the circnmstll:nces.of the case,·thilt theyeould have made a sale. and negliyou charge them with the gently -declined or refu8edtiJdd at subh' tiine; .". , J;[rvHillhirphrejJ.I would·Hkefor yourbonor to call the attention of tbejul"ytoitfl'Elfact that the defendants hereafter have to aeconntto the plaintiffs for these hogsheads Qf tobacco. . .' . ' · iftatrmits the'jurythatthe tobacco on hand is the" prol'ett)? df ,plllintiflS, Jtid Will, have to be accounted. for by defendantato plaintiffs in the eventth'e'jtil',Y"think and find thatdefendants are' not chargeable :with neglect to sell.

will

.

The ju:ry found ants;in.tbe:aum of $186,541, bU'tiwithout'interest.

. . a verdict again,st the plaihtiffs. and infavot of: the defend-,
'

'1,

LINDVALL fl. WOODS.

855

LINDVALL tI. WOODS (Cflrcuft Court, D.

et al.

M-Lnnesota. February

1"

1801.)

1. ,
   

HABTER AND SEBVANT-DUTIIIB OJ!' THII MASTIIR.

2.

The employer owes to the employe to use ordinary care to select and retain eom< petent'co.-employes, and not to sUbject the employe to the negligence of tellt fellow-workmen; also" to exercise ordiI\ary care to furnish a reasonably jlafe platie, for the employe to do his work in; alBo, to use ordinary care to disco';er any defent in the structure upon which the employe was required to go in perforwing his worl$. . . Ordinary care is that amount of care which an ordinarily prudent person would exercise under the lIame circumstances, and which ought reasonably to beobserved, taking into consideration all tbe exigencies of the particular service. '
CARB.

3. B.l1dE-WHO ABE F'ELLOW-SEBVANTS. Fellow-workmen are infa common employtilent when each of them is employee) in a service or work of lIuch a kind that all the others, in the exercise of 'ogacity,oughtto be able to foresee, when accepting employment, that it may prot). , ablY expose them to the risk of injUry in case he la negligent.. 4. S.l1dE-WIIO IS VIOl'J-!'BINCIPAL. , A foreman of a gang, vested with the control and supervision ot a partiemlat work to be done, and with powers to .say riot only wbat .shallbe dOJl,e, but: how it .hall bedont;l, arid who hasfuU power and authority -to. pommand the. men, under him in tbeir work, and w1:len the work is under his practical direction and control, save and e](ceptas he may receive directions froin time to time from his employer, lUld ord\narily there is ,no one else present aUthorized to superintend and direct the work. ot the men, represents the employer, and la hiaV1oe-principal. and forhll negligenll8 ,the employer la responsible. . .

At Law:. S1uJ.w k Oray, for defendant.

Arctander k Arctander,for plaintiff.

NELSON, J., (charging jury.) This has been a very long and tedioull case, ·but it is interesting from the fact that many· important legal qUe&tions have arisen, aside from the general interest taken in the testimony with :reference to the facts. You have given it such patient attention that it does not seem to, me necessary to go very Jar into the details of the testimony. The counsel have very thoroughly and exhaustively presentedthe several theories upon which a verdict,ia asked at your hands. Now, what is the case, gentlemen? The plaintiff, a laborer, brings this action to recover'damages against the defendants for injuries ""hich .it is alleged he sustained by reason of the negligence of the defendants in the course ofhis employment; that iato say, he claims that the injuries he sustained .w.ere the natural consequence of the negligence of the defendants; thattheir negligence.was the proximate cause of his injury. It appears that. the defendants were contractors,-railroad contractors, principally,-and, in the spring of 1888 they had a contract to grade of the St. Paul & Duluth Railroad, somewhere about 1,0 or straightening the trackj,and in doing thia it was necessary to doconsid-erable grading outside of the old track., Upon this work were several gangs of men under foremen,-at le3.ilt twojone under the charge ofMahoney, (not a very hU'ge, gang,) the other, near Gladstone, under the charge .of Murdock. in which gllng the, plaintiff worked. The work to be