A bond, with sureties, was executed for the purpose of securing
the repayment of certain money advanced for putting up and shipping
bacon. William Turner was to have the management of the affair, and
Harvy Turner was to be his agent.
After the money was advanced, Harvy made a consignment of meat,
and drew upon it. Whether or not this draft was drawn specially
against this consignment was a point which was properly decided by
the court from an interpretation of the written papers in the
case.
It was also correct to instruct the jury that if they believed,
from the evidence, that Harvy was acting in this instance either
upon his own account, or as the agent of William, then the special
draft drawn upon the consignment was first to be met out of the
proceeds of sale, and the sureties upon the bond to be credited
only with their proportion of the residue.
The consignor had a right to draw upon the consignment with the
consent of the consignee, unless restrained by some contract with
the sureties, of which there was no evidence. On the contrary,
there was evidence that Harvy was the agent of William, to draw
upon this consignment as well as for other purposes.
It was not improper for the court to instruct the jury that they
might find Harvy to have been either a principal or an agent of
William.
An agreement by the respective counsel to produce upon notice at
the trial table any papers which may be in his possession, did not
include the invoice of the consignment, because the presumption was
that it had been sent to London, to those to whom the boxes had
been sent by their agent in this country.
A correspondence between the plaintiff and Harvy, offered to
show that Harvy was acting in this matter as principal, was
properly allowed to go to the jury.
The testimony of an attorney was admissible, reciting
conversations between himself and the attorney of the other parties
in their presence, which declarations of the attorney were binding
on the last mentioned parties.
Evidence was admissible to show that a charge of one percent
upon the advance made upon the consignment, was a proper charge
according to the usage and custom of the place.
It is not necessary that the bill of exceptions should be
formally drawn and signed before the trial is at an end. But the
exception must be noted then, and must purport on its face so to
have been, although signed afterwards
nunc pro tunc.
The facts of the case are set forth in the opinion of the Court,
to which the reader is referred.
Page 57 U. S. 21
MR. JUSTICE CURTIS delivered the opinion of the Court.
This is a writ of error to the Circuit Court of the United
States for the District of Maryland. The action was debt on the
bond of the plaintiffs in error, the condition of which was as
follows:
"Whereas the said Joseph C. Yates is about to lend and advance
to William H. F. Turner the sum of twelve thousand dollars in such
sums and at such times as the said William may designate and
appoint, which designation and appointment
Page 57 U. S. 22
and advances it is hereby agreed shall be evidenced by notes
drawn by the said William in favor of the said Harry F. Turner,
agent, and by the latter endorsed, or by drafts drawn by the said
William H. F. Turner in favor of the said Harry F. Turner, agent,
on and accepted or paid by the said Yates, endorsed by said Harry
F."
"And whereas the said Harry F. Turner, Sterling Thomas, and
James F. Purvis, have agreed, as the consideration for the said
loan, to secure the said Yates the payment of the sum of six
thousand dollars, and interest thereon, part of the said loan, and
the said Harry F. Turner, with Robert Turner and Absalom Hancock,
have entered into a bond similar to this, for the payment of the
other six thousand dollars and interest."
"Now the condition of the above obligation is such that if the
said William H. F. Turner, at the expiration of twelve months from
the date hereof, shall well and truly pay to the said Joseph G.
Yates, his executors, administrators, or assigns all such sum or
sums of money as may be owing to the said Yates by the said William
H. F. Turner, evidenced as aforesaid, at the said expiration of the
said twelve months, or in case the said William H. F. Turner should
fail or omit to pay said sum or sums of money at said time if the
said Sterling Thomas and James F. Purvis, or either of them, shall
well and truly pay to the said Yates, his executors, administrators
or assigns, so much of said sum or sums of money as may then be
owing as shall amount to six thousand dollars and interest, in case
so much be owing, with full legal interest thereon, or such sum or
sums of money as may be owing with interest thereon, in case the
same should amount to less than six thousand dollars, then this
obligation to be null and void, otherwise to remain in full force
and virtue in law."
"HARRY F. TURNER [SEAL]"
"STERLING THOMAS [SEAL]"
"JAMES F. PURVIS [SEAL]"
The defense was that seven hundred boxes of bacon had been
consigned by William Turner to Gray & Co. in London for sale,
and having been sold, the whole of its proceeds ought to be
credited against the advance of twelve thousand dollars mentioned
in the condition of the bond. The plaintiff did not deny that the
merchandise was received by Gray & Co. for sale and sold by
them, but insisted that the property belonged to Harry, and not to
William Turner, and so no part of its proceeds were thus to be
credited, and that if bound to credit any part of these proceeds,
there was first to be deducted the amount of a draft for $5,733,
drawn by Harry Turner on the plaintiff specifically against this
property, which draft the plaintiff was admitted to have accepted
and paid.
Page 57 U. S. 23
Upon this part of the case the district judge who presided at
the trial ruled:
"If the jury believe that defendants executed and delivered the
bond now sued upon and that Harry F. Turner, in the transactions,
after occurring, in relation to the bacon at Chattanooga, was
either the principal in such transactions or acted as agent of
William H. F. Turner, then defendants are entitled only to be
credited for one-half the net amount of the shipments of bacon made
by them, after deducting from the proceeds of sales of such bacon
all liens thereon, including in such liens the draft of $5,733
drawn as an advance on such bacon."
This ruling having been excepted to, several objections to its
correctness have been urged at the bar by the counsel of the
plaintiffs in error.
The first is that the bond does not show the advances were
actually made, and therefore the judge ought to have directed the
jury to inquire concerning that fact. It is a sufficient answer to
this objection to state what the record shows that in the course of
the trial the plaintiff, having put in evidence drafts
corresponding with those mentioned in the bond amounting to
$12,000, the defendants admitted their genuineness and that they
were all paid at the times noted thereon. The fact that the $12,000
was advanced was not, therefore, in issue between the parties, and
there was no error in not directing the jury to inquire concerning
it.
It is further objected that in his instruction to the jury the
judge assumed that the draft of $5,733 was drawn against this
consignment, instead of leaving the jury to find whether it was so
drawn. The draft itself and the letter of advice were in the case.
The draft requested the drawee to "charge the same to account as
advised." The letter of advice states: "I have this day drawn on
you at ninety days for $5,733, being ten dollars and fifty cents
per box on 544 boxes singed bacon &c." This was a part of the
merchandise in controversy. It was clearly within the province of
the court to interpret these written papers and inform the jury
whether they showed a drawing against this property. When a
contract is to be gathered from a commercial correspondence which
refers to material extraneous facts or only shows part of a course
of dealing between the parties, it is sometimes necessary to leave
the meaning and effect of the letters, in connection with the other
evidence, to the jury.
Brown v.
McGran, 14 Pet. 493.
But this was not such a case, and we think the judges rightly
informed the jury that this draft was drawn against this property.
Whether, being so drawn, it bound the property and its proceeds, so
that in this action its amount was to be deducted
Page 57 U. S. 24
therefrom, depended upon other considerations, which are
exhibited in the other part of the instruction. Assuming what we
shall presently consider, that there was evidence from which the
jury might find that Harry, who drew the draft, was either himself
the owner of the property, and so the principal, or if not that he
was the agent of William, there can be no doubt of the correctness
of this instruction unless there was something in the case to show
that the owner of the consignment could not bind its subject by a
draft made and accepted on the faith of it. This is not to be
presumed, and if the two defendants, who were sureties on this
bond, assert that they had a right to have the whole of the
proceeds of this property appropriated to the repayment of the
advance of $12,000, for which they were in part liable, it was
incumbent on them to prove that the ordinary power of a consignor,
by himself or his agent, to draw against his property, with the
consignee's consent, was effectually restrained by some contract
with the sureties, or of which they could avail themselves. We have
carefully examined the evidence on the record, and are unable to
discover any which would have warranted the jury in finding such a
contract.
The bond itself contains no intimation of it. And although the
evidence tends to prove that the sureties had reason to expect that
bacon would be packed and sent to Gray & Co., and that, through
such consignments, the advance of $12,000 might be partly or wholly
repaid, they do not appear to have stipulated or understood that
William was to have no advance on such property. Indeed, the real
nature of the transaction seems to have been that the bond was
taken to cover an ultimate possible deficit, after the property
should have been sold and all liens satisfied, leaving William,
their principal, free to create such liens as he might find
expedient in the course of the business.
We are also of opinion that there was evidence in the case from
which the jury might find that Harry was held out to the plaintiff,
by William, as his agent, as well for the purpose of drawing
against this property as for other purposes. The letter from
William Turner to the plaintiff of the 14th November, 1849, and the
agreement of Harry appended to it, tend strongly to prove this.
They are as follows:
"CHATTANOOGA, Tenn., Nov. 14, 1849"
"MR. JOS. C. YATES: "
"DEAR SIR: In consideration of the advance of twelve thousand
dollars made me by you for the purpose of packing meats for the
English market, I hereby bind myself to make my whole shipments, of
whatever kind they may be, to your friends in
Page 57 U. S. 25
London or Liverpool, Messrs. B. Charles T. Gray & Son, for
the entire season, or longer, till such advance shall have been
paid off, together with any other that I may be permitted to draw
for."
"I am, dear sir, your most obedient servant,"
"W. H. F. TURNER"
"I agree to see the above carried out in good faith, and bind
myself for the due fulfillment of it."
"HARRY F. TURNER,
Agent of"
"W. H. F. TURNER"
It thus appears that further advances to William were
contemplated as a part of the arrangement with him, and Harry, as
agent of William, was to see the whole arrangement carried out upon
his personal responsibility. If, as these witnesses show, Harry was
agent for William for carrying out the whole arrangement, and
further drawing was contemplated as a part of it, it necessarily
follows he was his agent thus to draw. It is shown by the
correspondence that Harry had the sole charge of getting the
property down to the seaboard from the interior and of shipping it,
and that he had incurred large debts on account of it, and, finally
William Turner has not, so far as appears, repudiated his act in
drawing, and the defendants now claim the benefit of a consignment,
on the faith of which the draft in question was accepted.
Under these circumstances, our opinion is that it was not
improper for the judge to leave it to the jury to find whether
Harry was the agent of William, if he were not himself the owner of
the property. Nor do we think these two states of fact present such
inconsistent grounds as ought not to have been submitted to the
jury. It is true Harry could not be at the same time principal and
agent, but it often happens in courts of justice that a right may
be presented in an alternate form or upon different grounds.
If one party has dealt with another as an agent, it would be
strange if the transaction should be held invalid because it is
proved on the trial he was principal -- and
e converso.
The substantial question in such a case is a question of power to
do an act, and this power may be shown either by proving he had it
in his own right or derived it from another. Of course there may be
cases where the allegations of the parties on the record restrict
them to one line of proof, and there may be others in which the
court, to guard against surprise, should not allow a party to open
one line of proof, and in the course of the trial abandon it and
take an inconsistent one. But this last is a matter of practice,
subject to the sound discretion of the court, and not capable of
revision here upon a writ of error.
Page 57 U. S. 26
We hold the second instruction, which involved the merits of the
case, to be correct.
The other bills of exception relate chiefly to questions of
evidence.
In the course of the trial, the defendants introduced a witness
who testified that he made out an invoice of the 700 boxes of bacon
and sent it by mail to the plaintiff, who was the agent of Gray
& Co., to whom the property was consigned in London.
The defendants then called on the plaintiff to produce this
invoice under the following agreement:
"It is agreed between the plaintiff and defendant in this cause
that either party shall produce, upon notice at the trial table,
any papers which may be in his possession, subject to all proper
legal exceptions as to their admissibility or effect as evidence,
and that handwriting, where genuine, shall be admitted without
proof."
"S. T. WALLIS,
for plaintiff"
"BENJ. C. BARROLL,
for defendants"
The plaintiff said the invoice was not in his possession. The
defendants then offered to prove its contents. But the court was of
opinion it was to be presumed the invoice had gone to the
consignees in London, who were competent witnesses to produce the
original, and therefore parol evidence of the contents of the paper
was excluded.
This ruling was correct. So far as appears, this was the only
invoice made. Every consignment of merchandise regularly made
requires an invoice. It is the universal usage of the commercial
world to send one to the consignee. The revenue laws of our own
country, and we believe of all countries, assume the existence of
such a document in the hands of the consignee on the arrival of the
merchandise. It was the clear duty of the plaintiff, when he
received the invoice, to send it to the consignees in London. The
presumption was that he had done what is usually done in such cases
and what his duty required. If the paper was in the hands of the
consignees in London, secondary evidence was not admissible. For it
was not within the written agreement to produce papers, which
applied only to those in the possession of the plaintiff, and
though the plaintiff was an agent of those consignees, and seems to
have been suing for their benefit, yet aside from the written
agreement, they must be treated either as parties or third persons.
If as parties, they were entitled to notice to produce the paper;
if as third persons, their depositions should have been taken, or
some proper attempt made to obtain it. This also disposes of the
fifth exception, because if the evidence in the cause had some
tendency to prove the document had been retained, the offer of the
plaintiff to prove the contrary, and the election by
Page 57 U. S. 27
the defendants to rest their motion for the admission of the
parol evidence upon a concession that the fact was as the plaintiff
offered to prove it, instead of first calling for that proof, must
preclude them now from objecting that the proof was not given.
The second exception relates to the admission of certain
correspondence respecting this property between the plaintiff and
Harry Turner and Messrs. Gadsden & Co., of Charleston, S.C.,
before the property was shipped to London, and also the accounts of
sales of the property, which were introduced by the plaintiffs for
the purpose of showing that they were dealing with Harry Turner as
principal, and under a separate contract with him. We have no doubt
of the admissibility of this evidence for the purpose for which it
was offered. Whether Harry was principal or agent, it was competent
and important for the plaintiff to prove that he was dealt with and
treated as a principal, and there could be no better evidence of it
than the correspondence concerning the transaction. On the trial of
a commercial cause, such a correspondence is not only generally
admissible, but it is often the highest evidence of the nature of
the acts of the parties and the capacities in which they acted and
the relations they sustained to each other. It must be observed
that the plaintiff, in one aspect of his case, had three things to
prove. First, that there was a distinct arrangement with Harry to
ship property to Gray & Son and receive advances on it. Second,
that the plaintiff and Gray & Son acted on the belief that this
consignment was made under that arrangement. Third, that in point
of fact this consignment was made by Harry on his own account, and
not on account of William. And evidence showing that Harry, being
in possession of the property, consigned it to them, accompanying
or preceded by such letters as showed the consignment to be for his
own account, was clearly admissible upon each of these points. It
is true it might nevertheless be the property of William, and
really sent for his account, but that was a question for the jury
upon the whole evidence.
The third exception relates to the admission of the testimony of
Mr. Thomas respecting certain declarations made to him by Mr. Ward.
We do not deem it necessary to detail the evidence, it being
sufficient to say that so far as these declarations were made in
the presence of all the defendants, they were of such a character,
and made under such circumstances, as imperatively to have required
them to deny their correctness if they were untrue, and therefore
they were clearly admissible. So far as Mr. Ward's declarations
were made to Mr. Teackle when the defendants were not present, they
are stated to have been merely a repetition of his former
statements.
Page 57 U. S. 28
The judge left them to the jury with the following
instruction:
"If the jury find that W. J. Ward, Esq., was, in his
communication with the plaintiff's counsel, accompanied by the
defendants, and that defendants referred plaintiff's counsel to
said Ward to adjust and settle the differences between them, that
said defendants are bound by the acts and declarations of said
Ward, although he was only retained by H. F. Turner as such, unless
such limitations of retainer were stated to plaintiff or his
counsel."
This was sufficiently favorable to the defendants. It was really
of no importance whether Mr. Ward was counsel for one or all the
defendants, if they united in referring Mr. Thomas to him to adjust
the mode of preparing the papers, and in our opinion there was
evidence from which the jury might find such an authority to have
been given by the defendants jointly.
We consider the fourth exception untenable. If it was usual to
pay a commission for such services, it was properly charged in this
case, there being no evidence, to show that there was a special
agreement to render the services without pay or for less than the
customary commission.
The sixth exception was taken on account of the admission of the
testimony of Mr. Teackle, and certain letters of Gray & Co. and
Harry Turner. The former has already been disposed of in
considering the third exception, and the latter in considering the
second exception respecting the correspondence of Harry Turner,
most of the observations upon which are applicable to these
letters.
The remaining bill of exceptions is in the following words:
"Upon the further trial of this case, after the instructions
prayed for had been argued, and the court had decided to refuse the
same, and had granted the two instructions set out on the
defendants' seventh exception, the defendants' counsel having
prepared out of court their exceptions thereto, and to the other
points of law ruled by the court and excepted to during this trial
immediately after the court had so decided and before the bailiff
to the jury was sworn or the jury had withdrawn from the bar of the
court, presented their said exceptions and moved the court to sign
and seal the same before the verdict should be rendered; but the
court refused so to do, and refused to consider the said exceptions
or either of them under the rule of that court, November 25, 1846,
at the November term thereof."
"Ordered that whenever either party shall except to any opinion
given by the court, the exception shall be stated to the court
before the bailiff to the jury is sworn, and the bill of exceptions
afterwards drawn out in writing, and presented to the court during
the term at which it is reserved, otherwise it will not be sealed
by the court. "
Page 57 U. S. 29
In
Walton v. United
States, 9 Wheat. 657, this Court said,
"We do not mean to say, and in point of practice we know it to
be otherwise, that the bill of exceptions should be formally drawn
and signed before the trial is at and end. It will be sufficient if
the exception be taken at the trial and noted by the court with the
requisite certainty, and it may afterwards, according to the rules
of the court, be reduced to form and signed by the judge, and so in
fact is the general practice. But in all such cases the bill of
exceptions is signed
nunc pro tunc, and it purports on its
face to be the same as if it had been reduced to form and signed
during the trial, and it would be a fatal error if it were to
appear otherwise, for the original authority under which bills of
exception are allowed has always been considered as restricted to
matters of exception taken pending the trial and ascertained before
the verdict."
To what was there said this Court has steadily adhered.
29 U. S. 4 Pet.
106;
36 U. S. 11 Pet.
185;
45 U. S. 4 How.
15. The record must show that the exception was taken at that stage
of the trial when its cause arose. The time and manner of placing
the evidence of the exception formally on the record are matters
belonging to the practice of the court in which the trial is held.
The convenient dispatch of business in most cases does not allow
the preparation and signature of bills of exceptions during the
progress of a trial. Their requisite certainty and accuracy can
hardly be secured if any considerable delay afterwards be
permitted, and it is for each court in which cases are tried to
secure by its rules that prompt attention to the subject necessary
for the preservation of the actual occurrences on which the
validity of the exception depends, and so to administer those rules
that no artificial or imperfect case shall be presented here for
adjudication. The rule of the Circuit Court for the District of
Maryland is unobjectionable, and this exception is overruled.
The judgment of the circuit court is affirmed with
costs.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Maryland, and was argued by counsel. On consideration whereof, it
is now here ordered and adjudged by this Court that the judgment of
the said circuit court in this cause be and the same is hereby
affirmed, with costs and interest until paid, at the same rate per
annum that similar judgments bear in the courts of the State of
Maryland.