[113 N.Y.S. 780] George T. Hogg, for appellants.
Edwin Blumenstiel, for respondent.
Argued before PATTERSON, P. J., and LAUGHLIN, HOUGHTON, McLAUGHLIN, and SCOTT, JJ.
The defendant appeals from a judgment entered upon a verdict. The action is, or was before the amendment of the complaint hereinafter referred to, one for money had and received, and arose upon the following state of facts: The plaintiff is a foreign corporation engaged in the manufacture of cotton yarns. The defendants are bankers in the city of New York. The English-Greene Company was a corporation engaged in the business of buying and selling cotton yarns either as commission merchants for the manufacturers or as middlemen buying from the manufacturers and selling to consumers. In which capacity it acted with reference to the transactions out of which this action arose is one of the disputed questions of fact. On January 24, 1904, the defendants entered into an agreement with the English-Greene Company to make advances to the latter upon sales made by them. This agreement seems to have been a renewal, with some modifications, of a former contract of similar tenor. It provided, in substance, that the English-Greene Company might present to defendants invoices of goods sold to customers, made payable to defendants, with shipping proofs attached. If acceptable and accepted by defendants, they agreed to collect the amount of the invoices, to bear one-half the loss in case the customers should fail, and meanwhile to advance to the English-Greene Company not less than 80 per cent. of such invoices, charging interest upon such advances. There was an alternative provision, which does not enter into the present case, under which defendants agreed upon certain conditions to take up what are known as " mill drafts" drawn upon and accepted by the English-Greene Company. A considerable business was done between the English-Greene Company and the defendants; the advances by the [113 N.Y.S. 781] latter amounting at times to as much as $30,000. On January 18, and 19, 1904, following upon a correspondence between plaintiffs and the English-Greene Company, two orders were given by the latter company to plaintiff, which express the final result of their negotiations. The first of these orders reads as follows:
" No. 489. January 18, 1904.
" Kinston Cotton Mills, Kinston, N. C.: We confirm our order for 10,000 lbs. 20-1 Cones, Twist Hosiery, frame spun. Foster wind. Price 24-25 cents per lb. Terms less 2% and 5% 10 days. F. O. B. Philadelphia. Delivery 3,000 to 4,000 lbs. weekly at once. Kindly acknowledge receipt of this confirmation by signing and returning detachable slip and oblige,
" Yours very truly, English-Greene Co.
" Per James E. Mulgrew, Order Clerk.
" Approved by J. H. English, Manager Department."
The second order was similar in all respects except as to the amount, description, and price of the goods ordered. A number of shipments were made under these orders. There are involved in this action five shipments which were made under the first order and eight shipments made under the second. Pursuant to instructions given by the English-Greene Company, the bills of lading for 12 of these 13 shipments were made out to defendants; the thirteenth being made out to the English-Greene Company. All of the bills of lading were, however, forwarded by plaintiff to the English-Greene Company, together with an invoice, which was in each case in the following form:
" Kinston, N. C., Feb'y 3, 1904.
" English-Greene Co. New York City, N. Y., Bought of Kinston Cotton Mills, Spinners of Knitting Yarn.
" Order No. 491.
" Shipped to Knauth, Nachod & Kuhne, ...