Patterson v. Perry et al.

to the plaintiff as security for Ullman's debt, and he is liable upon it. But this leads to another question.

The debt was not owing to the plaintiff, but to Lumley, and it is objected that Fish is not the proper party to bring the action.

The promise is made to him by his own name, without further designation or qualification. It purports to be a contract with him personally. It is in every just sense made with him, and he may sue thereon. (Considerant v. Brisbane, 2 Bosw., 471.)

We think the judgment must be affirmed, with costs.'

JOHN S. PATTERSON, Administrator, Plaintiff, v. SAMUEL PERRY et al., Defendants.

WHITE, WARNER & WHITE, Appellants, and GEORGE MILNE, Respondent.

1. Where the owner of goods, residing in Ohio, consigned them to a factor residing in New York city, for sale, and such factor, on advice of shipments of goods from time to time, and on receipt of bills of lading for such goods advanced to the consignor, and on the 6th of April, 1854, the consignee's advances and charges exceeded in amount the value of the consigned property which had then come to hand, but were less in amount than the value of the whole consigned property, (including the value of that for which bills of lading had been received, but which had not then arrived,) and all of such consigned property arrived by the 15th of June, 1854, and on subsequent sales produced a surplus, after paying all advances and charges, an attachment against the property of such consignor, issued under the Code, and served by delivering a certified copy of it to such factor on the 6th of April, 1854, will attach and bind such surplus, and such attaching creditor will hold it in preference to, and to the exclusion of, another creditor of such consignor, who obtains an attachment against the latter and serves it in like manner on the 15th of June, 1854.

2. This result will follow, although enough of the consigned property, to pay the factor's advances and charges, had not only not been received by the

1 See Robinson's Practice, vol. 3, p. 34, and the cases there collected, which support the proposition, that as a general rule, on a contract not under scal, made with an agent in his own name, either the agent or principal may sue. (See. also, Poor v. Guilford, 6 Seld., 273.)

Patterson v Perry et al.

factor, but had not arrived within the State of New York when the first attachment was issued and thus served.

3. Nor will it make any difference that the creditor issuing the second attachment became such creditor by discounting for said consignor, at the date and time of the last of said shipments, two bills drawn by the consignor against said shipment, and that the factor was advised, by the consignor's letter inclosing the bill of lading for that shipment, of the drawing of said two bills against said shipment, and was requested to honor the same; and such letter and bill of lading was received by the factor on the 5th of April, 1854, before the first attachment was served or issued.

(Before HOFFMAN, PIERREPONT and MONCRIEF, J. J.)

Heard, October 26th; decided, December 24th, 1859.

THIS is an appeal by the defendants, White, Warner & White, from a judgment declaring that they have no lien upon or right to the moneys forming the subject of the action, and directing that such moneys be paid to the defendant, George Milne, surviving member of a firm composed of himself and George W. Reed. The action was tried before Mr. Justice HOFFMAN, without a jury, on the 25th of February, 1859.

The action was commenced by John S. Patterson, administrator of Samuel Lewis, deceased, as plaintiff, to recover balance of proceeds of property consigned to the defendant, Samuel Perry, a factor and commission merchant, for sale, by one Albert Lewis, of Cincinnati, Ohio, and was brought against Perry alone. The plaintiff claimed that the property and the proceeds thereof remaining in Perry's hands, had been assigned by Albert Lewis to one Henry Lewis, and by said Henry to the plaintiff's intestate.

On the application of Perry, the said Albert Lewis and Henry Lewis, the firm of White, Warner & White, the firm of Milne & Reed, and John Orser, Sheriff, of New York, were also made parties, defendants.

On the further application of Perry, and on notice to all of said defendants, an order was made that Perry pay into Court the sum of $6,696.62, the balance of proceeds in his hands, with interest from the 22d of March, 1856, to the credit of the cause, (in all $7,618.73,) and that on doing so he be discharged from all claims from either party in respect to such property or its proceeds. Perry complied with said order.

Patterson v. Perry et al.

At the trial, it was determined that the plaintiff had no right to such moneys, and the contest (as he did not appeal from the judgment) narrowed to one between the firm of White, Warner & White, and the firm of Milne & Reed, both of which firms claim such moneys by virtue of attachments issued by them against said Albert Lewis, and executed by said John Orser, as Sheriff of the city and county of New York.

The attachment against Albert Lewis, at the suit of White, Warner & White, was issued and served on the 6th of April, 1854. The property which Albert Lewis had then consigned to Perry, and which had come to the hands of the latter, was not of sufficient value to pay the advances and charges which Perry had made to said Albert Lewis thereon and upon other property not then received by him, but of the shipment of which he had been previously advised, and the bills of lading for which he had previously received.

But the property then in Perry's hands, which Albert Lewis had previously consigned to him, and that covered by bills of lading then in Perry's hands, which had not then arrived or been received by Perry, was worth more in the aggregate than the amount due to Perry for advances and charges. The property not yet actually received in New York, had been shipped and was in course of transportation to the city, and between the said 6th day of April (when the attachment of White, Warner & White was issued and served on Perry) and the 15th day of June, (when the attachment of Milne & Reed was served on Perry,) it all came into Perry's hands.

The proceeds of the last shipments made by Albert Lewis, were claimed by Milne & Reed to constitute the surplus in the hands of Perry, after paying his advances and charges. No property was shipped by Lewis after the 1st day of April, 1854, but on that day an invoice amounting to $8,548.92 was shipped from Cincinnati to Perry; and on the same 1st of April, 1854, said A. Lewis drew two drafts or bills of exchange on Perry, each for the sum of $4,202.99, one dated that day, and the other April 3d, to his own order, which two drafts were discounted for him by said Milne & Reed of Cincinnati, about the 1st of April, 1854, who paid the proceeds to said A. Lewis. On the same day, A. Lewis wrote to Perry inclosing the bills of lading for the property

Patterson v. Perry et al.

shipped on said 1st day of April, advising him of having drawn said two drafts against the same, and requesting him to honor thein. Perry received this letter on the 5th of April, 1854.

On the 6th of April, 1854, after the attachment of White, Warner & White had been served, these drafts were presented to Perry for acceptance. He refused to accept them on account of such attachment having been served, and they were protested for non-acceptance.

On the 15th of June, 1854, Milne & Reed, in an action commenced by them against Albert Lewis on said drafts, procured an attachment against the property of said Lewis, which was served upon Perry on the same day.

On or before the 15th of June, Perry had received the property shipped on the 1st of April, and also all prior shipments; and the sales of the consigned property extended into the following August and September. There was a balance produced from the whole property received by Perry, of the amount so as aforesaid brought into Court, over and above his advances and charges.

He made no advances at any time on the specific property shipped on the 1st of April, 1854, except the charges for freight, insurance, &c. On the 1st of April, 1854, he was a creditor of Albert Lewis to about the sum of $25,000, having made advances from time to time, on being advised of the shipment of property, much of which had not then reached his hands; nor does the evidence show that it had arrived within the State of New York on the 6th of April, 1854.

White, Warner & White and Milne & Reed had prosecuted their attachment suits to judgment prior to the trial of this action, and the records of recovery therein were put in evidence.

Each attachment was served by a delivery by the Sheriff to Perry of a copy thereof, having indorsed thereon a certificate signed by the Sheriff, and dated on the day of such service, in these words, viz.:

"I hereby certify the within to be a true copy of the original warrant of attachment, as served by me in this suit, and that the attachment, of which the within is a copy, is now in my hands, and that in it I am commanded to attach and safely keep all the estate, real and personal, of the said Albert Lewis within my county, (except such articles as are by law exempt from execuBosw.-VOL. V.

66

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Patterson v. Perry et al.

tion,) with all books of account, vouchers and papers relating thereto; and that all such property and effects, and the debts and credits of the said Albert Lewis, now in your possession, or under your control, are or which may come into your possession, or under your control, will be liable to said warrant of attachment, and you are hereby required to deliver all such property, &c., into my custody without delay, with a certificate thereof."

Perry sold the several shipments, indiscriminately, for the pur pose of paying advances; not selling property first shipped to pay the advances first made.

The Judge held that the resulting general balance of $6,696.62 was to be considered as derived from property received by Perry after the 6th of April, 1854, and most of it from that shipped on the 1st of April; that White, Warner & White acquired no lien on it under their attachment; but that the attachment of Milne & Reed was a lien thereon, and that the net surplus thereof be paid to Milne as survivor of Reed, he having died pendente lite.

White, Warner & White excepted to these conclusions severally, and from the judgment entered upon said decision they appealed to the General Term.

S. Weir Roosevelt, for appellants.

I. It is the opinion of the Court below, that the fund in dispute was chiefly produced by the sale of the last lot of goods, and that Perry had paid charges, but had not made advances on this last lot specifically. It appears, however, from Perry's accounts, which are in evidence, to have been the course of dealing between Lewis and Perry, not to discriminate among the various lots, but to sell a portion of one with another as suited the market, not keeping separate accounts with each lot; and if one lot did not fully repay advances, the next lot was sold to meet the deficiency, and such indeed is of necessity the general custom among commission merchants. It is therefore difficult to ascertain as a matter of fact which of the lots per se may fairly be said to have produced the fund in dispute. It appears to be conceded by all parties, however, that Perry was consignee of all the goods, and in possession of the bills of lading, with the right to sell the whole in order to pay himself advances, commissions and expenses, and he did sell the whole accordingly. No attempt