[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 32
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 33
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 34 An agreement was made at the time the bills passed into the hands of the plaintiffs, which must control the rights of the parties. By that agreement if the bills of exchange were accepted, and the acceptances were satisfactory to McCalmont Brothers Co., plaintiffs' London correspondents, the bills of lading were to be delivered up to the acceptors, who were consignees of the corn, and in that event plaintiffs would have to rely solely upon the personal responsibility of the drawers and acceptors for the payment of the drafts. But if the drawees declined to accept, or if they accepted, and the acceptances were not satisfactory, the plaintiffs' correspondents were authorized, at their discretion, to place the corn in the hands of brokers to be selected by them for sale, and they were required to apply the proceeds in payment of the bills. In the latter event plaintiffs could look to the drawers and acceptors only for the deficiency after applying the proceeds of the corn.
All the corn had been contracted to be delivered by the consignees, at different times, after its arrival in Liverpool, and before the maturity of the bills of exchange, and the defendants and their consignees were under obligation to fulfill these contracts. And it was expected, by both the drawers and acceptors, that the proceeds of the corn realized by delivery upon the contracts, would furnish the funds to pay the bills. Hence it was important that the consignees should at once control the bills of lading, and they were clothed with the usual and customary authority to obtain them. If plaintiffs' correspondents were not satisfied with their simple acceptances of the bills, the acceptors could, within the terms of the agreement upon which plaintiffs took the bills, make the acceptances satisfactory in any of the usual modes. And they could arrange for the delivery of the bills of lading to their own brokers employed to deliver the grain upon the contracts. *Page 36 That is, after the acceptors had made their acceptances satisfactory, a delivery of the bills of lading to any other person or firm upon their order or request, would be the same as a delivery to them.
When the bills reached Liverpool they were presented for acceptance, and were accepted, and we may infer, from the fact that plaintiffs' correspondents retained the bills of lading, that they were not satisfied with the acceptances alone, although there is no express proof of any dissatisfaction, and no proof that the acceptors upon acceptance asked for the bills of lading. When the corn arrived the consignees procured from plaintiffs' correspondents blanks, which they filled up for what is called the guaranties. They affixed their stamps to the instruments thus filled up, and wrote on the backs of them, over their signatures, the words, "The within engagement given at our request." They delivered these instruments to Campbell Co., and Campbell Co. delivered them to plaintiffs' correspondents and received the bills of lading. Whose brokers were Campbell Co.? Not plaintiffs. Their correspondents held the bills of lading, and the bills of exchange were perfectly secure. It was not for their benefit that the bills of lading were given up. The arrangement which resulted in giving them up was made for the benefit of the defendants and their consignees. Plaintiffs' correspondents had had no relations with Campbell Co., but they had acted as brokers of the consignees, and had made the contracts for the future delivery of this corn. The consignees procured them to sign these instruments, and they stated on the backs of them that the instruments were executed by Campbell Co., at their request, and that amounted to a request to plaintiffs' correspondents to deliver to them the bills of lading upon the receipt of the instruments. Plaintiffs' correspondents were not to control the brokers nor dictate, as they could if they had employed them, to whom and upon what terms they should sell the corn. They were, by the arrangement with the consignees, to deliver the corn upon the contracts previously made. This was the mode taken by the consignees to make *Page 37 their acceptances satisfactory, and it appears in the evidence to have been a customary mode. Plaintiffs' correspondents had thus parted with the bills of lading and placed them beyond their control, and the delivery to Campbell Co., upon the request of the consignees, was, in effect, a delivery to the consignees.
After plaintiffs' correspondents had thus parted with the bills of lading, they had, as security for the payment of the bills, the drawers and acceptors, and the guaranties signed by Campbell Co. The failure of Campbell Co. to perform their agreement in no way affects plaintiffs' claims against the parties to the bills. It is not true that Campbell Co. are not liable to account to the defendants. They did render the account of the sales of the corn to the consignees, thus showing whose brokers they understood they were. They received defendants' corn upon an agreement that they would dispose of it and apply the proceeds in discharge of defendants' liability, and having failed to perform this agreement, the defendants can call them to account.
We are, therefore, of opinion, upon the documents and undisputed evidence, that the plaintiffs were entitled to recover, and the judgment appealed from must be reversed, and new trial granted.
All concur.
Judgment reversed.