Adams County IL Family Information

Source: Records Of Cases Illinois
Written: 1850

James Bloomer, appellant, v. Matthias B. Denman, appellee.

Appeal from Adams.

If the court can see, that the jury in the court below were warranted by the
evidence, in inferring a state of case that would sustain the action, it is
bound to uphold the judgment, even though there should seem to be a slight
preponderance of evidence to the contrary, and the successful party is
entitled to all the inferences legitimately arising from such finding. (a)

The principal is liable for the acts of his duly authorised agent in the
business entrusted to him, and is not permitted to deny the truth of the
representations of such agent about the subject matter of such agency, on the
faith of which another has acted. (b)

If an agent rescind a sale by him made, the principal becomes liable to refund
any money which has been paid upon it. (c)

To authorize a recovery in an action for money had and received, a privity of
contract must exist between the parties. (d)

This was an action of assumpsit, brought by Denman against Bloomer, in the
Adams Circuit Court. The cause was tried at October term, 1850, before
Minshall, Judge, and a jury, and resulted in a verdict and judgment for the
plaintiff, of $391.30, with costs. The facts necessary to a full understanding
of this controversy will be found in the opinion of the court; and by
reference to the 11th Ill., 177, where the same case is reported.

the instructions referred to as asked by the plaintiff, are as follows:

First instruction. If the jury believe from the evidence, that Johnson was the
agent of Bloomer to receive the purchase money on said raft, and that after
having sold the raft to Demnan, and received a part of the purchase money, the
contract of sale was rescinded, and the raft again taken into the possession
of Johnson, and resold by him, and that Bloomer received the benefit of the
purchase money paid by Denman, and also of that paid to Johnson on the
subsequent sale of the raft, then Bloomer is liable to Denman for the amount
paid by Denman, and the jury must find a verdict for the plaintiff.

Second instruction. If the jury believe from the evidence, that Bloomer, with
a knowledge of all that had occurred between Johnson and Denman concerning
said raft, received from Johnson the money that had been paid him, Johnson, on
said raft, then Bloomer by receiving said money from Johnson, ratified the
arrangement made between Denman and Johnson in regard to whatever moneys had
been received by Johnson on said raft; and if Johnson, as the agent of
Bloomer, in regard to said purchase money, agreed with Denman that Denman
should be paid the $345 advanced by Denman, then the jury must find for the
plaintiff and assess his damage.

Third instruction. If the jury believe from the evidence, that Johnson was the
duly authorized agent of Bloomer, that as such agent he had the control of
said raft, that he represented to Denman that Bloomer was the owner of said
raft, that Denman, relying on his representations, dealt with Johnson in
relation to said raft, under the belief that Bloomer was the owner thereof,
that belief having been induced by the representation of Johnson, then Bloomer
is not permitted, in this suit, to deny that he was the owner of said raft.

Fourth instruction. If the jury believe from the evidence, the facts upon
which the third instruction is predicated in regard to the agency and
representations of Johnson, and if they further believe from the evidence,
that after said raft broke from its fastenings, Johnson took charge of said
raft on behalf of his principal, and on a settlement with plaintiff, promised,
in behalf of the defendant, to repay said plaintiff whatever money had been
expended by said plaintiff about said raft, then no question arises in the
case about the delivery of said raft to the plaintiff before it broke away;
and the jury will find for the plaintiff a verdict for the amount paid by the
plaintiff, with interest from the time said money should have been repaid.

Seventh instruction. The court will instruct the jury, that if they believe
from the evidence, that the raft belonged to Clinton, and that it was sold and
delivered by his agent to Denman, and and the sale to Denman has not been
rescinded, then Denman is liable to Clinton, on his contract of purchase, for
the price he agreed to pay for the raft, and he, Denman, is entitled to the
money received by Bloomer for said raft.

The instructions referred to, as asked by the defendant, are as follows:

First instruction. The court is asked to instruct the jury for the defendant,
that if they believe from the evidence that the raft was the property of
Clinton, and that Johnson, in selling the raft, and disposing of the money,
was acting as Clinton's agent, that then they will find a verdict for the

Fifth instruction. That, although they may believe from the evidence, that
Johnson agreed to rescind the contract by which the raft was sold to Denman,
still they will find for the defendant, if they also believe from the
evidence, that Johnson, in selling said raft, and in rescinding said contract
of sale, was acting as the agent of Clinton, and that Clinton was the owner of
the property.

A motion for a new trial was made and overruled. Bloomer brings the cause to
this court by appeal.

R. S. Blackwell, for appellant:

The third and fourth instructions given on the part of the plaintiff below,
were erroneous in this: It lays down the proposition that Bloomer is estopped
to deny ownership of the raft, and agency of Johnson, by the representations
of one assuming to be an agent, without any regard to proof of the fact of
agency: 1 Greenleaf's Ev., 137, sec. 113; 2 Ibid, 46, secs. 59, 60; Story's
Agency, sec. 135; 2 Starkie on Ev., 34-5.

Denman was bound to know the extent of Johnson's authority: Mechanics' Bank v.
Bank Columbia, 4 U. S. Cond., 671; Atwood v. Mannings, 14 Eng. C. L. Rep., 43-
4. No estoppel in such cases: Story's Agency, 128, sec. 136, and note.

The giving of the first, second and seventh instructions of plaintiff, and the
refusal of the court to give defendant's instructions first and fifth, present
the merits of the action. To maintain this action the plaintiff is bound to
show privity of contract between himself and the defendant.

Privity need not necessarily be founded upon an express contract between the
parties. Sometimes the law, operating upon the act of the parties, creates the
duty, establishes the privity, and implies the promise upon which the action
is founded. But the privity must exist, either by the express assent of the
parties, or by construction of law. Whenever the party sought to be charged
upon an implied promise, refuses to be bound, the presumption of privity is
rebutted. No one can be made the debtor of another without his consent.

In this case Bloomer refused to purchase the raft of Clinton, but agreed to
make advances upon it, to secure a debt due him from Clinton, and also
reimburse his advances out of the proceeds of the raft. The expenses of
sending the raft to market were to be borne by Clinton, and the raft was at
his risk. The money received by Johnson of the plaintiff, was paid into
Clinton's hands. The proceeds of the raft did not secure Bloomer's claim
against Clinton, and Bloomer refused to accept and pay the draft drawn by
Johnson upon him.

The facts that Bloomer, first, refused to purchase the raft; second, that his
object was to secure his debt and advances; third, that he stipulated with
Clinton against the risk and expense; fourth, that the money of the plaintiff
never came to Bloomer's hands; fifth, that Bloomer refused to pay the draft of
Johnson, clearly evince an intention on the part of Bloomer not to make
himself liable for and on account of the raft, further than to the extent of
the advances he had already made upon it, rebut the implied promise sought, to
be established against him, and contradict in the most unequivocal manner, all
idea of privity between the plaintiff and himself. These principles are all
clearly laid down in the following cases: Williams v. Everett, 14 East, 582;
Stewart v. Fry, 2 Eng. C. L. Rep., 129; Stephens v. Babcock, 23 ibid, 93; Sims
v. Brittain, 24 ibid, 78; Young v. Dibrell, 7 Humph., 270; Wilson v. Greer, 7
ibid, 513; Grant v. Austin, 1 Eng. Ex. Rep., 284; Tiernan, v. Jackson, 5 Pet.,
599; Seaman v. Whitney, 24 Wend., 260; England v. Clark, 4 Scam., 486;
Trumbull v. Campbell, 3 Gil., 502.

Privity, as required in this action, is founded on the maxim, that no man can
be made a debtor without his consent. The distinction between privity, as
respects the proceeds of property wrongfully taken from the owner and
converted into money without his consent, and privity of contracts, is often
confounded. In the first case, the owner may treat the tort feasor as a
purchaser, an agent, or bailee, whose disposal of the goods is thereby
sanctioned and confirmed by the owner, and in this way a privity, in law, is
established between the parties: Jones v. Hoar, 5 Pick., 285, and note.

In this action of assumpsit for money had and received, the plaintiff must
show, first, the receipt of the money by defendant; second, the receipt of it
for the use of the plaintiff. In this case Johnson was the agent of Clinton to
sell the raft, pay off the hands, and the residue of the proceeds, after
paying Bloomer, to Clinton. He was the agent of Bloomer for the single purpose
of receiving and paying over Bloomer's debt and advances out of the proceeds.
When Johnson sold the raft and received the advance of $300 from Denman, he
acted as Clinton's agent, and paid the money out to Clinton's hands. The
money, then, was received by Clinton, and not by Bloomer: Sumner v. Hamlet, 12
Pick., 82.

This is an equitable action, and plaintiff must have a better right ex oequo
et bono to recover, than Bloomer has to retain the money: Buel v. Boughton, 2
Denio, 91. If Johnson had no authority to draw upon Bloomer, any promise by
Bloomer to accept and pay the draft is a nudum pactum: Fenn v. Harrison, 3 T.
R., 754 (3 and 4 Cond., 412); May v. Coffin, 3 Mass., 341.

Williams & Lawrence, for appellee:

Wherever one man has in his hands money belonging to another, "ex oeque et
bono," an action for money had and received lies. The cases relied upon by the
counsel for the defendant in regard to privity of contract, are all cases in
which the plaintiff has brought his suit for money deposited by a third
person, and the cases have been decided upon the ground that the third person
depositing the money had a right to recall it. But in this case we are
pursuing our own money, which has passed into the possession of Bloomer,
through the hands of his agent, with a knowledge, on Bloomer's part, of all
the circumstances. The cases, then, cited by the defendant's counsel, do not
apply to the case at bar; and moreover, the authority of those cases has been
overturned in this country, and is shaken by contrary authorities in England.
We rely upon the following authorities: Hall v. Marston, 17 Mass., 563; Mason
v. Waite, ibid, 579; Eagle Bank v. Smith, 5 Conn., 71; Hitchcock v. Lukens, 8
Porter, 338; Wiseman v. Lyman, 7 Mass., 288; Eddy v. Smith, 13 Wend., 488;
Hudson v. Robison, 2 Maul. & Sel., 478; 2 Burrow, 1012; Cowper, 200; 31 Eng.
Com. Law Rep., 396; Camp v. Tompkins, 9 Conn., 555.

But this record does not present the question of "privity," which the counsel
for the plaintiff in error attempt to raise. The instructions asked for the
defendant below, and refused (numbered 1 and 5), merely direct the jury to
find for the defendant, if they believe Johnson was Clinton's agent, and the
raft belonged to Clinton. But there was evidence showing Johnson to have been
also Bloomer's agent, and if he was Bloomer's agent, then no question
of "privity" could arise, and it would have been error in the court to have
directed the jury to find for the defendant, simply because they might believe
Johnson was Clinton's agent, without amending the instruction by requiring the
jury to believe also that Johnson was not Bloomer's agent. If he was Bloomer's
agent, then no question of "privity" could arise, and it would have been
palpably wrong to have required the jury to find for the defendant because
Johnson was Clinton's agent, when the jury might at the same time believe that
he was also Bloomer's agent, and that being admitted, the plaintiff was
confessedly entitled to recover.

Trumbull, J. The facts of this case are briefly these. One Clinton had a raft
of lumber at the mouth of Fever River, which he proposed to sell to Bloomer,
of Galena, whom he was owing. Bloomer declined purchasing, but made advances
upon the raft under an arrangement with Clinton that it was to be sent down
the Mississippi river and sold. Out of the proceeds of the sale, the expenses
of taken the raft to market were first to be paid, then the sum due Bloomer,
including his advances, and the balance was to be paid over to Clinton.
Johnson, a clerk in the employ of Bloomer, went down the river, and at Quincy
made sale of the raft to Denman, who advanced to him part of the purchase
money which was used by Johnson in paying off the hands upon the raft.
Subsequently the sale to Denman was rescinded, and Johnson gave Denman a draft
upon Bloomer for the amount he had received from Denman, and for certain
expenses that had been incurred by the latter in taking charge of the raft.
The raft was subsequently sold by Johnson, and the proceeds paid over to
Bloomer, but he refused to accept the draft drawn on him by Johnson, and this
action was brought by Denman to recover the amount. The jury found in Denman's
favor and he had judgment.

It is asserted here, that no such privity of contract existed between Denman
and Bloomer, as would authorize the former to maintain this suit.

In determining this question, Denman is entitled to all the inferences
legitimately arising from the finding of the jury, and if the court can see
that they were warranted by the evidence in inferring a state of case that
would sustain the action, it is bound to uphold the judgment, even though it
should be of opinion, that there was a slight preponderance of evidence
against the finding.

Clinton, who was introduced as a witness on the part of Bloomer,
testified: "That he made an arrangement with Bloomer to send the raft down the
Mississippi river for sale on the witness' account, that Bloomer agreed to
advance in contemplation of a sale, that the raft was to be sent down the
river at the risk and cost of witness, that the proceeds were to be applied
first to pay the expenses of the raft, the amount of defendant's debt and
advances were to be paid out of the proceeds and the remainder to be paid over
to witness;" that the hands on the raft were in witness' employ, "that he was
informed by Bloomer that he would send Johnson, the clerk, down the river with
the raft for the purpose of making the sale, that witness assented to this
arrangement and agreed to pay Johnson twenty-five dollars for his trouble,
etc." This evidence taken by itself, clearly shows that Bloomer had control of
the raft, and that Johnson was his agent to make sale of the same. Bloomer
was "to send the raft down the Mississippi river for sale" on Clinton's
account, and the very fact, that the balance was stipulated to "be paid over"
to Clinton, shows that the proceeds of the raft were not to be received by
him. No man in possession of his own money, after agreeing to pay certain
claims out of the same, would further stipulate with the claimants, that the
balance should be paid over to himself. It is true that in another part of his
evidence, Clinton says that Johnson was acting for him in the sale of the
raft. In one sense it is true that both Johnson and Bloomer acting for
Clinton. He had put the raft into Bloomer's hands to be sold on his account,
and he might, therefore, well say that both Bloomer and his clerk were acting
for him in making the sale; but if he meant to be understood as saying that
Johnson was acting for him, otherwise than as the clerk of Bloomer, he was
evidently mistaken, as such a statement would contradict the substance of the
transaction, as he had previously stated it. Johnson testified "that he
considered himself as the agent of Clinton in selling the raft, paying off and
discharging the hands, and accounting for the residue of the proceeds after
paying Bloomer's debt and advances, and that he was Bloomer's agent only to
secure his debt and advances out of the proceeds of the raft." What Johnson
may have considered cannot alter the real character of the transaction as
shown by the other evidence in the cause. In a previous part of his testimony
he had stated an agreement between Clinton and Bloomer that he should go down
the river and make sale of the raft, and Clinton states that Bloomer informed
him that he, Bloomer, would send Johnson to make the sale. By what process he
was transformed from Bloomer's clerk, into Clinton's agent, is not very
apparent from the record. At all events a verdict that the raft was placed
under Bloomer's control to be sold, and that Johnson was his agent to make the
sale, is not so manifestly against the evidence, as to call upon the court to
set it aside.

Assuming then, in accordance with the finding of the jury, that Johnson was
Bloomer's agent, and as such authorized to sell the raft, it is clear that his
principal is liable for his acts in and about such sale.

It was decided when this case was here before, 11 Ill.. 177, that if Johnson
had authority to make the sale to Denman he had authority to rescind it, and
it follows as a necessary consequence, that when such sale was rescinded, his
principal became liable to refund the money which had been paid upon it, in an
action for money had and received: 1 Ch. Pl., 356; Towers v. Barrett, 1 Term
R., 133; Gillet v. Maynard, 5 John., 85.

The first, second, third, fourth and seventh instructions given to the jury in
behalf of the plaintiff below, have also been objected to.

The principles of law involved in the first and second instructions have been
substantially settled in disposing of the main question in the case. The third
lays down the proposition, that a party is not permitted to deny the truth of
the representations of his duly authorized agent about the subject matter of
his agency, upon the faith of which another has acted. Of the correctness of
this proposition there can be no question: Story on Agency, sec. 134.

The fourth instruction asserts no principle of law not recognized by the
previous ones.

The seventh instruction, although it contains a correct proposition of law,
was inapplicable to the case, and ought for that reason to have been refused;
but we do not think the jury could have been misled by it, particularly when
considered in connection with the fourth instruction, given on behalf of the

The refusal to give the first and fifth instructions asked by defendant, is
also alleged as error. These instructions contain correct propositions of law
so far as they go, and yet we can readily perceive how they might have misled
the jury if given. Clinton may have been, and was in fact the general owner of
the property, and Johnson might be regarded in one sense as his agent in
selling the raft, although Bloomer may at the same time have had a special
properly in the raft, authorizing him to sell and control it and Johnson may
have been his clerk for that purpose.

Had these instructions excluded the idea that Bloomer had a special property
in the raft, and that Johnson was also his agent in making the sale, it would
clearly have been error to have refused them. The authorities referred to by
the appellant's counsel clearly show, that in a case of such a character, to
authorize a recovery in an action for money had and received, a privity of
contract must exist between the parties, and there would be none in the case

Judgment affirmed.

(a) C. & R. I. R. R. Co. v. Crandell, 41 Ill., 234 (annotated edition), and
note; O'Brien v. Palmer, 49 Ill., 72, accord.

(b) It is not error to allow the statements of an agent, made at the time of
the sale of personal property, to be given in evidence: Gilson v. Wood, 20
Ill., 37. The admissions of an agent within the scope of his authority will
bind his principal: Hungate v. Rankins et al., 639; Cook v. Hunt, 24 Ill.,
536. Statements made by an agent as to his duties within the scope of his
employment bind his principal, although he be not present: DeLeure v. Nerly,
71 Ill., 473.

(c) See Ellington v. King, 49 Ill., 449.

(d) As to the action of money had and received, see Parker v. Fisher et al.,
39 Ill., 164 (annotated edition), and note.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill.

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