Joseph Story

“ It seems to us that these authorities are founded in good sense and convenience: until the parties, receiving the consignment or remittance, had done some act recognising the appropriation of it to the particular purposes specified, and the persons claiming had signified their acceptance of it, so as to create a priority between them; the property and proceeds remained at the risk and on the account of the remitter, or owner. ”

“ But, if assigned, and the debtor promise to pay the debt to the assignee, the latter may maintain an action for the amount against the debtor, as money received to his use. Independently of such promise there is no pretence that an action can be sustained. Have Tiernan and Sons, since notice of the present assignment, made any such promise to Jackson? No express promise is shown; and the acts antecedently done by Tiernan and Sons repudiate the notion of any intentional implied promise; for those acts appropriate the property to their own claims, and to meet their own lien. ”

“ Thus, if a man grant the profits of his land, it is said that the land itself passes. Co. Litt. 4. Com. Dig. Grant, E. 5. At the time when this assignment was made, the tobacco was in transitu; and if there had been an absolute assignment of the proceeds, so that the tobacco was immediately put at the risk of the assignee, and the assignor was to have no further control over the management of it, we do not mean to say that it would not pass the legal title and property in it to the assignee. ”

“ As to the second bill of exceptions, which presents the right of the plaintiffs in error as resting on the lien of factors for their balance, it was admitted, that this lien existed in general, upon the goods of his principal for a general balance. But, even as to the goods of the principal, if the factor receive them for sale, on a promise to pay the proceeds, when sold, to a particular individual; he has no lien on such goods for the balance of his account. 6 T. Rep. 262. The tobacco was received under an implied agreement to dispose of it under the orders of Mr Fletcher ”

“ The defendants by their counsel prayed the court to instruct the jury.
1. If the jury find from the evidence, that, by the terms of the settlement between Thomas H. Fletcher and Ephraim H. Foster, the agent of the defendants, the said Fletcher was to continue still liable to the defendants for the money due to them from the said Fletcher, that then the assignment of the notes and the receipts mentioned by the said Fletcher in his deposition, did not extinguish the original debt due from him to the defendants, on account of which the said notes were assigned. ”

“ It is in the character of a sale of part of the proceeds in the hands of the consignees, who were mere factors, and on the authority of the case of Conard vs. The Atlantic Insurance Company, 1 Peters, 444; it is considered that the circuit court were right in rejecting the first prayer of the defendants in that court.
There is another and a distinct ground on which it is held that the instructions of the circuit court were right; and on which the action is sustainable. ”

“ The equities were equal, and the possession was in the plaintiffs. They have no security for their debt, but the property retained by them; having returned the notes received by Mr Foster, preserving only the responsibility of Fletcher for their claims.
The assignment of May 21, 1819, did not convey the legal title of the property to the defendant in error, so that he would maintain his action. It remained in Fletcher, until the shipment was received, and then the lien of the plaintiff's in error attached. ”

“ Luke Tiernan and Sons were in 1819 the creditors of Thomas H. Fletcher, a merchant of Nashville, in the state of Tennessee, for a balance of account current, admitted to amount to four thousand nine hundred and six dollars and eighty-three cents. Mr Fletcher was at the same time largely indebted to Luke Tiernan and Co. of which firm Luke Tiernan was the surviving partner, and other merchants in Baltimore, Philadelphia, and elsewhere. ”

“ The question, then, is, whether there are any ingredients in this case furnishing sufficient proofs of such an agreement. Such an agreement may be express, or it may be implied; if the circumstances of the case, coupled with the acts of the parties, necessarily lead to such a conclusion. ”

“ The shipment left this property subject to the control of Fletcher, and directed the proceeds to be subject to his order; when it was sold, it was sold as the property of Fletcher, and the proceeds held as such; a part only was assigned to Fletcher, and if a suit could be maintained under the assignment, all the persons named in it should have united. The interests cannot be so split up and divided, and thus each become the subject of a separate suit. ”