#### JOSEPH BLAND et al, Adm'rs., v. JOHN W. SCOTT.

Where the plaintiff, the defendant and another, shipped produce on the same boat, consigned it to a faster, who sent the defendant a draft on New York for the whole amount, which he sold, and receiving the money for it, endorsed it in his own name, but the paper coming back to- him dishonored, the defendant refunded the money, and was unable to get it from the factor, after using due and proper diligence, it was Held that the defendant was in nowise liable for the loss of the debt.

Action on the case, tried "before- Saunders, J., at the Fall Terra, 1860, of Chatham Superior Court.

The following statement, signed by counsel, was sent to.this Court as the case tried below, viz:

u The evidence was as follows: William Bland, the 'plaintiff’s intestate, through the defendant, who acted without commissions, shipped from Haywood to Wilmington, in February, 1857, a lot of cotton, worth $290. At the same time the defendant shipped, in the same way, produce for himself and for Elias Bryan. I. S. Banks was the consignee of this produce, and by .direction of the plaintiff’s intestate, the cotton also was forwarded to him. In March, 1857, Banks remitted to the defendant a draft on a house in New York for $750, which having been sold for the money, and endorsed by Scott to one Lambeth, was, on due presentment, dishonored and returned through Lambeth and Scott to Banks. By agreement between Banks, Lambeth and the defendant, a second draft, given in substitution of the first,' was made payable di'rectly to Lambeth. Upon this, only $363,08 was received of the drawees, the draft having been duly dishonored for the rest. Lambeth on having the seeond draft returned to him, carried it to Scott and demanded of him the difference between the $750, for which it called, and the $363,08, which be had received upon. it. Scott paid it w-ith (among other money) $290, which he produced in a roll from his pocket, saying, “ this is Bland’s money for his produce, I have already paid Elias Bryan more than his share.” It was shown that the draft for $750, was remitted, in part, for the purpose^ *101of paying off the debt to Bryan and that to Bland. It was also shown that the debt to Bryan was $396,96, and that he received it of Scott on the 20th of Mareh, 1857. The following is a copy -of the second draft, which was prodnced by the defendant a't the trial:

“Wilmington, N. C., April 18th, 1857.

“$750. Ten days after date, acceptance waived. Please pay -to the order, of A. T. Lambeth, Esquire, seven hundred and fifty dollars for value received,; which please charge to ike account of your ob’t serv’t, J. S. Banks.”

To Messrs. B. B. Blossom and Son, New York.

TJpon this, were the'following endorsements : “ A. T. Lambeth.” “ Money received oía aep. $353,08 of the within debt.” “ Pay the balance to the order of J. W. Scott — A. T. Lambeth.” Just after the second -draft was returned, Banks failed, and it did not appear that any thing further was ever received by Scott for tire cotton, exeept some salt >and a-safe. After Banks failed, upon Scott’s being about to visit Wilmington, Bland desired him to try and save -something for him. Whether this was done, did not appear. Itwas-shown. that afterwards the defendant received of Banks the -lot of salt and a -safe above mentioned, a part of which, :he offered to Bland, who refused it. It appears also, that -Scott >and BryaD, each, lost several hundred dollars by Banks. The plaintiff showed a demand on Scott, for the value -of the cotton, a short time before the suit was brought, a*nd that the latter refused to pay, saying, that as he had 'failed to receive the money from Banks, it would be hard for him to have to pay ft.”

His Honor charged the jury, that upon the evidence, they should find a verdict for the plaintiff for $290, with interest from the the 1st of April, 1857.

Yerdict and judgment for plaintiff. Appeal by defendant

JJowse, for the plaintiff.

Phillips, for the defendant

*102Manly, J.

After digesting as well as we can the facts of this case, we are unable to perceive the ground on which the-defendant was held liable for the value of Bland’s produce. It seems that Wm. Bland, the intestate of plaintiffs, the defendant, Scott, and a person by the name of Bryan, sent produce down the Cape Fear river on the same boat. The defendant, in putting the freight on board at Haywood, the place of departure, acted as the agent of Bland. The produce was consigned, by the agreement of all concerned, to J. S. Banks, of Wilmington, as a factor, to dispose of it for the benefit of each consignor. The produce was transmitted in February, and in the month of March, a draft on B. B. Blossom and Son, of New York, was sent to Scott for the entire proceeds. This draft was discounted by A. T. Lambeth, at the instance of Scott, and on the 20th of March, Bryan’s proportion of it was paid to him by Scott, viz., $396,96. The draft was dishonored and returned, and an arrangement was then made by Banks with Scott and Lambeth, to draw again for the amount of $750, on the same house in New York in favor of Lambeth, which was accordingly done, and on this draft $353,08 was received by Lambeth. It seems that Scott then refunded to Lambeth the proceeds of the draft less the $353,08 received on the same, saying, as lie produced a part of the money, viz., $290, that it was Bland’s money.

Thus, it will be seen, that of the common adventurers in this enterprise, Bryan has received the proceeds of his produce; Bland has not- received any thing, and Scott, the defendant, has not only not received any thing, but has suffered a loss over and above of $43,88, except he derive some indemnity from the salt and safe referred to i'n the evidence.

The case states that Scott acted as the agent of Bland in starting the produce to Banks, but after that,, it is not stated that he was to be responsible. Banks is the consignee and factor, alike of all, and upon the delivery of the produce he became responsible to each. That is our conclusion on the state of the facts presented to us in the record.

The question, then, is, did the defendant’s interference in th© *103matter, as a volunteer in respect to Bland and Bryan, without any interest in the transactions, except to the extent of his part of the proceeds of sale, make him responsible to the others? We think not.

If it be assumed that, having accepted a bill, payable to himself for the whole proceeds, and having attempted its collection, he has made himself liable for ordinary care and diligence, we think these have been exerted. It is clear, the defendant is not at all liable for the delinquenees or want of fidelity in Banks. The latter was as much the factor of the plaintiff as of the defendant, and the latter can only be subjected to responsibility in case some act or omission on his part, in relation to the fund sent him, was contrary to the eourse of a man of ordinary prudence in the management of his own affairs. What, then, is his conduct in this respect? He takes the draft sent, embracing the sum due himself as well as the sums due Bryan and Bland. He procures it to be discounted and is proceeding to distribute the proceeds, when the draft is returned dishonored by the drawee. Another draft is then taken from Banks, and upon this is paid $353,08. It is dishonored as to the balance. Banks fails, and the defendant being liable upon his endorsement, refunds the money in hand, arising from the discount of the bill. By reference to the dates of these transactions, it will be perceived that all this is done from about the middle of March to the middle of April.

It seems to us, after the false step of consigning to an untrustworthy factor, for which defendant is not responsible, due diligence was used in endeavoring to make available the fund sent, and defendant is not responsible for the failure.

Upon the state of facts reported, therefore, we differ from his Honor as the personal responsibility of the defendant to make good the loss. What may be the rights of the parties, respectively, in the funds actually received, we are not now called upon to say. There should be a venire ele novo.

Per Curiam,

Judgment reversed.