Smith v. Farmers' and Merchants' Bank

This is an appeal from the judgment dismissing the action and the order sustaining the demurrer. The complaint alleges: That between January 14, 1904, and March 3, 1904, the plaintiff and forty-four others delivered to one A. G. McKerlie certain milk and cream, the property of plaintiff and the other forty-four persons, upon an agreement that said McKerlie would make the same into butter for said persons, and as their agent market the butter for them, receive the proceeds thereof, retain two cents on every pound of such butter, and pay over to such persons “to each person that portion of the whole proceeds of sales which the quantity of butter made from the milk or cream delivered by such person bear to the quantity made from that delivered by all such persons.” That said McKerlie received the milk and cream delivered to him and made the same into butter except about twenty per cent thereof, and sold the butter for said persons, and also the twenty per cent of cream and milk. The complaint then proceeds: ‘ ‘ That, between said two dates, defendant herein, well knowing that said A. G. McKerlie held said proceeds of sales mentioned in paragraph 3 hereof solely for and as agent of…