Millingar v. Hartupee , 53 Pa. 362 ( 1867 )

The opinion of the court was delivered, by

Read, J.

The very elaborate opinion of the learned judge below prevents the necessity of doing more than to notice the principal points of the case, and to give in a brief form our views in regard to them. First, we agree with the learned judge that the proceedings in the Prize Court did not affect the ownership of the released cotton, but left it as it would have stood if no capture or seizure had taken place. There being no condemnation of it, no change of title took place, and the government and the captors had put an end to any supposed rights of theirs by their own voluntary act. Upon this point we think the reasoning of the court below is conclusive.

Then the garnishee claims this cotton as his own, being purchased in Texas by his debtor, who thus paid his creditor by investing his debt in cotton, and sending it to him in that shape. This the jury have directly negatived, and even if we differed from them it is not our province to criticise or to interfere with their decision upon that point, as it was not the property of the garnishee, so neither are its proceeds in his hands, and this brings us to the real question in the case.

This cotton was purchased by Gearing with his own money, and, of course, was his property ; was shipped for Havana, there to be sold, and the proceeds to be remitted to James Millingar, Pittsburgh, Pennsylvania, he to pay the indebtedness of Gearing pro rata to each creditor, and if there was over enough to pay them, the balance was to be given to his wife, Mrs. Gearing, for him. This was distinctly submitted by the court to the jury, and found by them. Owing to the capture, the cotton came directly into Millingar’s hands, and was by him turned into money. In Lestapies v. Ingraham, 5 Barr 71, it was held that where one by fraud obtains compensation for injuries done to the property of another, who himself was unable to make a claim therefor, the receiver is accountable to the party whose property is injured; so here, if the cotton was released upon a representation that it belonged to Millingar, he is accountable to Gearing for it. Under this state of facts the relation between them was that ,of principal and agent, with specific instructions as to the application of the money the proceeds of the cotton, in which Millingar has no further interest than as a creditor of Gearing to receive an equal share with the other creditors.

If an agent receives a sum of money from his principal, with instructions to apply it to a particular purpose, and he refuses to apply it to that purpose, or to account for the same, an action for money had and received will lie against him, and so this action will lie, if he misappropriates the money, or applies it to the particular purpose after his authority so to apply it is countermanded: Chitty, Jr., on Contracts, by Russell, 6th ed. p. 546.

This is the condition of the garnishee, who has forfeited all claim to compensation by a fraudulent attempt to hold this cotton and its proceeds as his own, and disavowing entirely all agency for his principal, Gearing, who could therefore bring an action for money had and‘received against Millingar, and against whom therefore his attachment-execution lies, and has been properly levied upon the debt due by the garnishee to Gearing, the judgment-debtor of the plaintiff.

All the other questions are either immaterial in this view of the case, or were -properly disposed of by the court, and there is therefore nothing in the fifteen specifications of error.

Judgment affirmed.