Turner v. Yates

THIS case was brought up by writ of error from the Circuit Court of the United States for the District of Maryland.

The facts of the case are set forth in the opinion of the court, to which the reader is referred.

It was argued by Mr. Barroll and Mr. May, for the plaintiffs in error, and by Mr. Johnson, for the defendant in error. There was also a brief filed upon that side by Mr. S. T. Wallis.

The points on behalf of the plaintiffs in error were the following:

First and fifth exceptions. That the court erred in ruling out the parol testimony offered, of the contents of the invoice sent to the defendant in error by William H. F. Turner from Chatanooga.

Second, third, and sixth exceptions. That the court erred in admitting the testimony to prove the separate contract alleged to have been made by Mr. Yates with H. F. Turner, &c., as set forth in the statement upon page 34 of printed record. Cole v. Hebb, 7 G. & J. 20; Davis v. Calvert, 5 G. & J. 269; Clark v. State, 8 G. & J. 111; Magill v. Kauffman, 4 Serg. & Rawle, 317, 321; ''Franklin Bank v. Penn. Del. & Md. S. N. Co., 11 G. & J. 28; Gilpins v. Consequa,'' 1 Peters's C. C. Rep. 87.

Fourth exception. That the court erred in admitting the evidence of usage for commission to be charged on advances on shipments made to London, because the said evidence was irrelevant.

Sixth exception. That the court erred in admitting the evidence of Mr. Teackle, because it was incompetent testimony, and because it was irrelevant.

Seventh exception. That the court erred in rejecting the prayers of the defendants, and in its instructions to the jury, for the following reasons:

1. Because said instructions are vague and uncertain, and therefore calculated to mislead the jury. 2. Because the first instruction is not limited to the interview (or subsequent ones) in which the defendants requested plaintiff's counsel to see Mr. Ward. 3. Because said first instruction embraces the acts and declarations of Mr. Ward, in the interview with Mr. Teackle. 4. Because said first instruction directs the jury that the defendants are bound by the acts and declarations of Mr. Ward, although he was only retained by H. F. Turner as such, unless such limitation of retainer was stated to plaintiff or his counsel. 3 Ph. Ev. 359; 1 Greenl. Ev. § 197, 199. 5. Because the said Purvis and Thomas, two of the defendants, were not bound in law by the acts or declarations of said Ward, if the jury believed the testimony, that said Ward was not their agent or counsel, and did not claim or profess to act as such with their knowledge or consent. (Same authorities.) 6. Because, in order to make the defendants liable for the declarations of said Ward, it ought to have been put to the jury to find that defendants, although present, heard such declarations, or were in a position to be able to hear, if so disposed. Gale v. Spooner and others, 11 Vermont Rep. 152; Edwards v. Williams, 2 How. Miss. 846; Ward v. Hatch, Iredell, 282.

And so far as the second instruction is concerned, that the court erred in giving the same. Because, 1. The said instruction invades the province of the jury, by assuming as facts the making of the draft for $5,733, and also that said draft was drawn as an advance on said bacon. Lewis v. Kramer, et al. 3 Md. Rep. 294. 2. The said instruction calls upon the jury to decide a question of law, in leaving them to find what are liens on said bacon. Plater v. Scott, 6 Gill & Johns. 116. 3. The said instruction requires the jury to deduct from the net proceeds of sales, the draft for $5,733, without requiring them to find the fact that said Harry drew said draft, as agent of William, and had authority so to do, or the facts from which such authority may be inferred. 4. Because there was no evidence from which the jurors had the right to infer that the draft for $5,733 was in fact drawn by Harry as the agent of William, or that said draft was accepted, or paid by the plaintiff to said Harry, as agent of William, the admission of the payment of said draft being that such payment was to Harry, in his individual capacity, and not as agent. 5. Because the principle announced in said instruction, that if the jury find Harry acted as agent of William in the transactions after occurring in relation to the bacon at Chatanooga, then Harry had authority to draw said draft, and William and his property are bound therefor, is in conflict with the principles of law, there being no evidence in the cause from which an authority to Harry, to draw and negotiate drafts as agent of William, can be sustained. The plaintiffs in error will contend, that the agency of Harry was not otherwise than as overseer and adviser for William, in slaughtering hogs and packing the meats, and did not authorize said agent to procure advances, by pledging the meat before or after its shipment, to Messrs. Gray & Son. And that the character of the agency was known to the defendant in error from the beginning. And in ascertaining whether Harry had authority to draw the draft in question, the court are bound to exclude from their consideration all the testimony limited to the proof, that Harry acted as principal, and not as agent, in drawing such draft. Sto. Ag. §§ 87, 251, 390. 6. Because the advance of $5,733, under the circumstances of the case, was a fraud upon the sureties in the bonds, if such advance was made upon William's meat. 7. Because the said instruction does not require the jury to find that the advance of $12,000 was made in pursuance of the bond. 8. Because the court erred in allowing the plaintiff below to contend before the jury, upon two distinct, inconsistent propositions. Winchell v. Latham, 6 Cowen, 689. Beake's Ex. v. Birdsall, 1 Coxe, 14.

Additional objections to the Court's second instruction.

1. Because the court erred in its instruction to the jury, that only half the net proceeds of the bacon was to be credited to the defendants. The plaintiffs in error will contend that the whole net proceeds of the bacon should have been credited to the amount of the advance of $12,000, and the jury instructed to give a verdict for the amount found to be due by William H. F. Turner. They will contend that under the instruction, as given, the jury were bound to find a verdict against the defendants for a greater sum than was owing by William, the excess being to the extent of the other half of the net proceeds not credited.

2. They will also contend that, whether the meat belonged to William or Harry, the $5,733 draft, paid by Mr. Yates, was not a lien on the meat, because the bill of lading was not indorsed. That there can be no lien without an actual or constructive possession of the thing intended to be given in pledge, and that, in the case at bar, Mr. Yates had no such possession. 14 Peters, 445.

3. In the court's instruction the term liens was intended to embrace the item of $5,733, under the fourth exception. The plaintiffs in error will contend that such item was a personal charge against him, to whom the advance was made, and was not a lien on the meat; and the jury should not have been instructed to deduct the same as a lien.

The points on behalf of the defendant in error, were:

1. That the parol evidence referred to in the first exception was properly excluded.

Because notice, at the trial table, to produce the invoice, was insufficient except under the agreement, and the agreement referred only to papers in the actual possession of the parties. The agreement rested obviously on the good faith of the parties and their counsel; and the declaration of the plaintiff below, that the paper was not in his possession, was prim a facie sufficient to establish that fact, and exclude the paper from the effect of the agreement.

Because, even if the notice had been sufficient to justify parol proof of a paper constructively in the possession of the plaintiff below, the invoice in question was not so constructively in his possession, having been forwarded to accompany meat, destined for the Messrs. Gray, and received by them, and being therefore, by legal presumption, in their possession.

It will be further argued, that the plaintiffs in error were not prejudiced by the exclusion of the parol proof, even if it was admissible under the other proof in that stage of the cause, because it afterwards appeared that the invoice had been actually transmitted to the Messrs. Gray, and was still in their possession, which would have made the parol proof incompetent, even if it had been admitted, under the notice to Yates.

It will further be contended that no prejudice resulted to the plaintiffs in error, in any event, from the rejection of the proof, because its whole purpose was to show notice to Yates, that the meat on which he advanced $5,733 was William Turner's, not Harry's, and the court rightly instructed the jury, afterwards, that it made no difference, for the purposes of the case, to which of the Turners the meat in fact belonged.

2. That the plaintiffs in error could under no circumstances be entitled to a credit, on the bond in suit, of the proceeds or any part of the proceeds of the shipments to the Messrs. Gray, unless the meat to shipped belonged to William H. F. Turner; that the proof offered by the defendants in error, and the admission of which forms the matter of the second exception, was offered in connection with other direct proof stated in advance, and afterwards adduced, showing that there was a separate contract with Harry F. Turner for the shipment of meats and receiving advances thereon, which separate contract was known to the plaintiffs in error (Henry F. Turner himself being one of them,) when they signed the bond in suit; that the defendants in error, with this knowledge, and forewarned of the difficulties which might result from the two co existing contracts, insisted neverthless on becoming sureties in the mode proven; that by the very terms of the bond they constituted Harry F. Turner (one of themselves) their agent, as to William H. F. Turner's business, and placed him in the position of deceiving or misleading Yates in regard thereto, and of managing and shipping the meat as his own or his son's-which they were forewarned might happen; that they were thus bound by Harry F. Turner's action in the premises; that the correspondence between Harry F. Turner and Yates furnished the only positive evidence of the capacity in which Turner shipped the meat and asked and received Yates's advance thereupon, and such correspondence was therefore clearly admissible, for that purpose, which was the only purpose for which it was offered, and went directly to the question of the right of the plaintiffs in error to be credited on the bond with any part of the shipments to the Messrs. Gray.

That the letters of Turner, and the Messrs. Gladsden, who shipped for him at Charleston, inclosing the bills of lading, and relating to the shipment of the meat, were part of the res gestae, and bore directly on the points for which the proof was offered.

That the accounts of sales of the bacon, rendered by the Messrs. Gray, had been previously spoken of by Robert Turner, the witness of the plaintiffs in error, and were admissible on that ground, as well as part of the res gestae.

That the letters of Harry F. Turner to Yates, about the meat, and in regard to drawing thereupon, had been spoken of by the same witness, and were admissible, on that score, if on none other.

That the capacity in which Harry F. Turner acted at Chatanooga, had been proven by Wilkins and James S. Turner from said Harry F. Turner's acts, and his letters, accompanying his acts and transactions there, were competent to go to the jury for the same purpose.

3. That the evidence of Mr. Thomas was clearly admissible for the purpose for which it was offered.

4. That the proof in the fourth exception of the custom in Baltimore to charge one per cent. on advances upon shipments to London, and that the plaintiff (below) claimed it, on his advance of $5,733, was admissible, because the advance of $5,733 was properly made, and the plaintiff being entitled to charge for it in account was entitled to the usual commission upon it. The plaintiffs in error themselves, had proven, by the production of Mr. Yates's letter, that such a per centage was chargeable.

5. That the evidence, as to the invoice claimed to be admissible by the fifth exception, was properly rejected, for the reasons previously stated, (No. 1.) and because it was not rebutting evidence, and was inadmissible at that stage of the cause.

6. That the evidence of Mr. Teackle, sought to be excluded by the sixth exception, was not only competent in itself, but was rendered proper by the proof previously introduced by the plaintiffs in error themselves, and embodied in the same exception.

That the letters between the Messrs. Gray and Harry F. Turner, were competent proof, because it had been shown that the plaintiffs in error when they signed the bond, were notified of the existence of the agreement which these letters constituted, and of which they were the best proof.

That they were likewise admissible, because the plaintiffs themselves had previously produced Mr. Yates's letters, referring to the understanding between Harry F. Turner and the Messrs. Gray, of which the letters here referred to were the only proof.

7. That under the circumstances of this case, and in view of the relation of the plaintiffs in error, Purvis and Thomas, to Harry F. Turner, as their joint obligor and co-defendant, with whom they had taken joint defence, they were bound by his acts and declarations in the premises. Van Reimsdyk v. Kane, 1 Gallison, 635; Simonton v. Boucher, 2 Wash. C. C. Rep. 473; Martin v. Root, 17 Mass. 227; Montgomery v. Dillingham, 3 Smedes & Marshall, 647; Armstrong v. Farrar, 8 Missouri, 627; 1 Greenleaf's Evidence, § 174; 2 Starkie's Evid. 25; 1 Phillips's Evid. 92.

8. That even if the proof offered and objected to in the second, third, and sixth exceptions was inadmissible, as against Purvis and Thomas, it was clearly competent as against Harry F. Turner, and as the objections were taken, generally, to the admissibility of the proof against all the defendants, they were properly overruled.

9. That the objection to testimony in the third, fourth, and sixth exceptions, was too indefinite to be allowed. Camden v. Doremus, 3 Howard, 530.

10. That if the court erred in reference to the instructions prayed or given, it was in favor of the plaintiffs in error, by rejecting the prayer of the plaintiff below, which was based upon evidence properly before the jury, and tending to the conclusion which the prayer adopted.

That the first prayer of the plaintiffs in error was properly rejected, because it excluded from the jury all consideration of the contract between Yates and Harry F. Turner individually, as well as of the question whether the meat in controversy was or was not his individual property; and because, further, it made the right of the defendants to a credit from the said meat dependent exclusively on the fact of its belonging to William H. F. Turner, without reference to Yates's knowledge or ignorance of that fact, or to the responsibility of William H. F. Turner and his sureties, under the circumstances, for the acts and declarations of Harry F. Turner, whom they had constituted their agent in the transaction.

Said first prayer is further defective, obviously, in that it claims credit to the extent of the whole sale, and receipt of proceeds of the meat, whereas, in no case could the plaintiffs in error have been entitled to a credit of more than one half the said proceeds; the sureties on the other bond being in equal right and entitled to divide whatever credits might appear.

The prayer is likewise improper, because the cause of action being joint, and the defence and issues joint, it nevertheless asks an instruction that the jury may sever in their finding, and give to the defendants, Thomas and Purvis, a credit to which their co-defendant, Turner, is not entitled.

The second prayer of the plaintiffs in error was properly rejected, upon the grounds expressed in the court's first instruction, it being immaterial whose attorney Mr. Ward in fact was, or whether he represented himself to be the attorney of Purvis and Thomas, provided the jury believed, that in their presence and with their knowledge, he acted for them, and that the attorney of Yates was referred by them to him, to settle the differences then pending in regard to the bond.

11. That the rule of court was lawful and governed the case, and the court properly refused to postpone the swearing of the bailiff and the discharge of the jury until the signing and sealing of the exceptions. Walton v. United States, 9 Wheaton, 651; Ex parte Bradstreet, 4 Peters, 106-7; Brown v. Clarke, 4 Howard, 15.

12. The defendant in error will argue, upon the whole case, that the agreement of William H. F. Turner to send his shipments to Gray & Son, to pay off the advance of $12,000, and whatever else he might be allowed to draw for, was no part of the bond or of the consideration upon which the plaintiffs in error joined in it; but a stipulation made afterwards to Yates, not by him, for his benefit, nor that of Turner and his sureties; that it in no way precluded Yates from making subsequent advances, or pledged him to appropriate the proceeds of the meat first to the $12,000 loan; but, on the contrary, expressly provided for further advances and their payment; that whether Harry F. Turner signed himself 'agent' or not to the $5,733 draft, made no difference whatever, provided Yates accepted and paid the same in good faith, on a pledge of the meat; that whatever be the shape of the transactions, it is manifest that the original loan was to have been made to Harry F. Turner, on the terms of his letters to Messrs. Gray; that bonds to that effect were drawn with the knowledge of Purvis and Thomas; that the substitution of William H. F. Turner was only as to the loan of $12,000, and was made for the benefit of Harry F. Turner, without the participation of William, who was in Chatanooga, and at the request of the sureties, against the remonstrance of Yates's attorney, that Harry F. Turner was agent of William and manager of the whole business, its property and correspondence, with the privity and at the desire of the sureties; if he committed a fraud on Yates, or on them, they must bear the burden, as he was of their selection; and that they are under no circumstances entitled to have carried to the credit of the bond more than the amount given by the jury; that it to say, the margin left of the proceeds of the shipments, after allowing for the usual stipulated advances.

Mr. Justice CURTIS delivered the opinion of the court.