Page:Federal Reporter, 1st Series, Volume 2.djvu/619

 612 FEDEIUIi BEPORTEK. �ingham & Bro. had, it was deemed necessary that the stock shipped from that point should be shipped ia the uame of McCully. Coacerning the receipt by the defendants of the stock consigned to McCully, McCully testifies that on hia arrivai in Chicago he explained to one of the defendants the circumstances under which the stock was shipped in his name, and gave to the defendant with whom he had the conversa- tion an order to sell the stock on account of J. Buckingham & Bro.,telling him at the same time that he (McCully) had no interest in the stock. The witness Buckingham has also tes- tified that he telegraphed the defendants to receive the stock shipped in the name of McCully, and that this was done in the evening of the eleventh or on the morning of the twelfth of October. There is no doubt that the entire four car-loads of stock came, in the manner stated, to the possession of the defendants. �The defendant Wagner, in his testimony touching the sales of the four car loads of stock, and the account of sales which the defendants rendered, says that the defendants did not authorize the indorsing of the amount which they paid to the bank upon the draft which Buckingham & Bro. had drawn upon them, but that the accounting and payment were made according to the ordinary course between commission men and the owner of the property, and not to apply upon the draft. On presentation of the draft of October 12th, such pre- sentation being made on the 13th, payment was ref used ; and the same resuit followed the presentation of the second draft of October 15th. It has been stated that the testimony of the cashier of the plaintiff bank is that at the time the lirst draft was drawn and the money advanced to Buckingham & Bro. the bills of lading were attached to the draft. From the tes- timony of the defendant Wagner it appears — and his state- ment on the subjeet is positive — that when the draft was pre- sented for payment no bills of lading were attached. And it appears, further, that, in order to obviate ditficulties supposed to arise from previous presentations of the drafts to the de- fendant in connection with the bills of lading, the plaintiff bank, on the seventeenth day of December, 1878, more tha» ����