Hutchinson v. Bours

Opinion — Heydenfeldt

The opinion of the Court was delivered by Mr. Justice Heydenfeldt.

Mr. Chief Justice Murray concurred.

The District Court erred in refusing to give the fifth instruction asked for by the defendant to the effect “ that if Montgomery & Co. were in possession of the property and clothed with the external evidences of ownership, and that it was part of their usual business to buy and sell goods on their own account, that such apparent ownership gave them power to sell or pledge.”

The rule as to the lack of power in factors to pledge goods of their principals was referred to by this Court in the case of Wadsworth & Meisegaes v. Lent, 5 Cal. R. This rule is only applicable where the party pledging is technically a factor, where his only business is to sell goods consigned to him for that purpose, wherefore, on account of his notorious employment, all the world is charged with notice that the goods in his possession are the property of others, and that he has power only to sell, them, and no power to pledge them.

In this ease Montgomery & Co. were not technical factors. From all the proof, besides the business of commission merchants, they were regularly engáged in trade as general merchants, buying and selling on their-:, own account, and especially so in reference to the very article which is .'the subject of this controversy. With but a little difference in the facts, the case is similar to the one cited from 5 Cal. R.

The judgment is reversed and the cause remanded.