Lemcke v. Booth
Supreme Court of Missouri
Appeal from St. Louis Circuit Court. This is a suit.to. recover from defendant an indebtedness which arose by a sale of liquorice of the plaintiff, consigned to defendant as a factor or commission merchant. Before all the proceeds of sale had been paid over, the defendant failed, and now pleads his discharge in bankruptcy as a bar to the suit. The court, on demurrer, decided for plaintiff, and final judgment was entered.
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Appeal from St. Louis Circuit Court. This is a suit.to. recover from defendant an indebtedness which arose by a sale of liquorice of the plaintiff, consigned to defendant as a factor or commission merchant. Before all the proceeds of sale had been paid over, the defendant failed, and now pleads his discharge in bankruptcy as a bar to the suit. The court, on demurrer, decided for plaintiff, and final judgment was entered. If no conversion takes place before a sale in market, but he sells in the ordinary course of his business, there can be no conversion afterward. The identity is gone, and a…
1Opinion of the CourtCurrier, Judge
The question is here presented whether a factor or commission merchant stands in a fiduciary relation to his principals in respect of the proceeds of sales of commission goods, within the meaning of section 33 of the bankrupt act of 1867 (U. H. Stat. at Large, 533). The section provides that “no debt created by the fraud or embezzlement of the bankrupt, or his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged under the act.” The corresponding provision in the bankrupt act of 1841 excluded from its benefits “ all persons owing debts created in…
2Cases cited3 opinions
- Chapman v. Forsyth & LimerickSupreme Court of the United States · 1844
- Duguid v. EdwardsNew York Supreme Court · 1867
- In re KimballU.S. Circuit Court for the District of Southern New York · 1869
3Cited by11 opinions
- Dows v. . KidderNew York Court of Appeals · 1881
- Flanagan v. PearsonTexas Supreme Court · 1874
- Goodman v. HermanSupreme Court of Missouri · 1903
- Fulton v. HammondDistrict Court, N.D. Alabama · 1882
- Brooks v. YocumMissouri Court of Appeals · 1890
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