David Davis

“ On the 6th February, Gregg & Hughes wrote to Drakely & Fenton: 'We claim the whole of the property-the hams, pork, and shoulders-our receipts cover them.' The extracts given in the statement of the case (supra, p. 244 to p. 252) show that Gregg & Hughes at this time made no distinction between the hams, and the pork, and shoulders; but set up the right to deal with all alike.
But the correspondence does not leave us merely to infer, from the ownership alone, that the hams were responsible for the advances made or for the general balance, when the final account sales of the whole was rendered. ”

“ In the already mentioned letter of the 15th March, Gregg & Hughes say:
'In regard to holding on to the property for any great length of time, we can only say that it is not our desire to do so if we can avoid it without sacrificing it.' 'We certainly do not wish to hold the hams and shoulders until warm weather, and hope you will be able to sell them before that time. If anything is to be held, let it be the pork.'
'As the market is now we cannot estimate the entire shipments of McCabe & Co. to a figure any greater than we now have in them ”

“ McCabe & Co. may have the very best intentions in this matter, and we hope they have, but the course pursued is not exactly as we would have done, and we think very strange of McCabe & Co., for having moved property belonging to us without our consent. We desire that they shall have the benefit of everything the pork, lard shoulders, and hams bring over the amount we have in them. ”

“ Drakely & Fenton had agreed to receive, on consignment, from McCabe & Co., hams, shoulders, prime and new pork; to sell the property at the highest market price, and to advance, on each shipment, at certain specified rates. In pursuance of this understanding, McCabe & Co. made two shipments, one of barrelled meat, and the other of shoulders, in tierces, on which they drew drafts in favor of Gregg & Hughes to the amount of $59,000 which were paid. ”

“ On the day succeeding their shipment, the Baltimore firm received a telegram, which was followed by a letter from Gregg & Hughes, of Chicago, claiming title to all the property, and requesting that the bills of lading for the hams might not be negotiated until the whole matter was properly adjusted; and, until then, Drakely & Fenton did not know that Gregg & Hughes had any interest in the property consigned to them. ”

“ As respects the oral testimony of Hughes, it may be said so far as a want of legal precision is suggested in the letter of the 27th February, that it is the legal precision used which frees the case from all doubt. ”

“ Now, gentlemen, this is rather a singular view you take of the matter, and a novel construction you place on our account; you certainly were aware, from the beginning, that the 983 tierces of hams belonged exclusively to us, and you also know, that we were to have the benefit of the excess over and above your advances of the sales of the provisions shipped you direct by McC. & Co. They drew on bills of lading as per your proposal in your letter to them, dated January 10th, 1865; the hams, they had no right to value against, and did not do so, which you are well aware of ”

“ The plaintiffs in error, who were the defendants below, insist that they are injured by the action of the court in not allowing their defence to go to the jury. Their position is, that the evidence in the case proved their defence, or, at least, tended to prove it ”

“ The correspondence closes with a letter from Gregg & Hughes of September 16th, 1865, in which they present their view of the case thus:
'You say that you cannot recognize any distinction in the ownership of the hams, shoulders, and pork, that you received from McCabe & Co. and ourselves, and are not willing to make any further advances on them, until all is disposed of. ”

“ We, of course know you cannot tell exactly what it would sell for but we suppose you can form an opinion somewhere near its value. We would be pleased to have you furnish us with your account sales of each lot sold, and your account current when all is closed out. ”

“ It admits, moreover, that, although the first consignment of the property of Gregg & Hughes, was made without authority by McCabe & Co., yet that they made 'no serious objections to it;' in other words they ratified it, and received the proceeds of it, availing themselves of the act of McCabe & Co. as their agents in the premises; that (with a knowledge of the letter of Drakely & Fenton, of January 10th, 1865) , they proposed to send to them, the same consignees that McCabe & Co. ”

“ Our New York balances will require us to place some funds there very soon, and as we have calculated on the consignments to you to help us through, we beg leave to ask you whether with the present prospects, you could not within a few days place $5000 with Hennings, Flint & Pearce, and accept our 30 and 60 day bills on you for $10,000 more, favor of Messrs. ”