Matthias B. Denman v. James Bloomer

Source: Reports Of Cases Illinois
Written: 1849

Matthias B. Denman v. James Bloomer.

Error to Adams.

1. Agency—when principal bound. An agent appointed for special purpose can not
go beyond the scope of such appointment and bind his principal; nor can he act
after such employment ceases, by his having completed the business, to
transact which he was constituted an agent. But within the scope of such
employment, and until the power conferred is exhausted, or revoked, the agent
can bind the principal, to the same extent that the principal can bind himself.
(l)

2. Instructions—duty of counsel. Each party asking instructions from the
court, should see that the instructions are proper in themselves. It is not
sufficient that the necessary qualifications of them, may be found in the
instructions given for the opposing party.

This was an action of assumpsit, brought by Denman, the plaintiff in error,
against Bloomer, defendant in error, to recover money paid by Denman to
Bloomer, agent. Plea, non assumpsit. The plaintiff proved that, in July, 1848,
a man named Johnson, came down the Mississippi river to Quincy, where Denman
lived, with a raft of lumber. That Johnson represented to said Denman that
said raft belonged to the defendant, Bloomer; it having been taken by him from
a man by the name of Clinton, in payment of a debt due from Clinton to
Bloomer; that Denman agreed to buy said raft of Johnson; that a day or two
after the terms of said purchase were agreed upon, the raft arrived, Johnson
having preceded it to Quincy; that it was landed at a place where the clerk of
Denman was not willing to receive it, on account of the inconvenience of
taking it from the water; that it was moved two or three blocks lower down the
river, to a place designated by Denman's clerk, and landed; that said clerk
did not think the raft safely landed, and so expressed himself to Johnson, who
then had the raft in charge; that Johnson replied that it was safe, and he
would insure it; that the person in charge of the raft left it, and Johnson
went to Denman's office, and Denman paid Johnson $300, which Johnson paid to
his men. The balance of the money was to be paid when the timber should be
taken from the water and measured; the timber was to be removed from the water
at Denman's expense. The next morning the raft was gone. At the request of
Johnson, one of Denman's men went down the river in search of it, in a small
boat, with other men. Johnson went down on a steamboat. Denman's man found the
raft at Hannibal; and when Johnson, who had gone as far as Alton, was apprised
by *telegraph of this fact, he[*178] returned to Quincy, settled with Denman,
and agreed that he would take said raft under his own charge, and repay said
Denman the $300, paid by him to Johnson, and, also, the expense incurred by
Denman's man, named Baylor, in securing said raft at Hannibal. Johnson went to
Hannibal, took charge of the raft, and took it down the river, and said Naylor
returned to Quincy, bringing with him Johnson's draft for $345, drawn on said
Bloomer. Johnson had arranged with Denman, at Quincy, that after learning the
amount of expenses from Baylor, he would give Naylor a draft on a firm in
Hannibal, or on his principal, Bloomer, for all the money paid by Denman;
which draft he promised should be paid at maturity. The draft was never paid,
nor any of the money advanced by Denman.

The above is the substance of the testimony of Woodruff, who was Denman's
clerk. The said Baylor, Denman's agent, testified, in substance, the same
matters.

Aaron Denman, the father of plaintiff, testified, that, in August, 1848, being
on his way to Galena, he took with him Johnson's draft on Bloomer, for
acceptance. Bloomer was unwilling to accept said draft, until he had heard
further from said Johnson; but said the draft should be paid, and admitted
that Johnson was his agent, and requested one E. N. Turner to write on the
face of said draft that he declined accepting it, on the ground that he had
not heard from Johnson on the subject, "but acknowledged Mr. James M. Johnson
to be his legal and authorized agent." This was written on the draft by said
Turner, at the request of Bloomer, and in his presence. The witness believes
that he told Bloomer on what account the draft was drawn by Johnson, in favor
of plaintiff, Denman. The plaintiff, also, gave in evidence said draft, with
the endorsement above stated on its face. The defendant produced the said
Johnson as a witness, who testified that one Clinton was the owner of said
draft; that Clinton brought it to Galena, where Bloomer lived; that Clinton
was in debt to Bloomer, and it was agreed between Clinton and Bloomer, that
the raft should be sent to market at Clinton's expense, and that Johnson, who
was Bloomer's clerk should go down the river and make sale of the raft, and,
after paying expenses, the proceeds should be paid over to Bloomer on
Clinton's debt; the raft was to be sent to market at Clinton's expense and
risk, and he was to pay Johnson, and Johnson was to be his agent for the
purpose of selling the raft, and Bloomer's agent for the purpose of receiving
the money. The witness came down the river in advance of the raft, to Keokuk.
When the raft arrived at Keokuk, witness came down to Quincy, and made the
sale. He denies that he represented to Denman that Bloomer was the owner of
the raft, or that he was Bloomer's agent to sell the raft. His account of the
landing of the raft, and the payment of the $300, by Denman, is substantially
correct, except that he says he deemed the delivery of the raft complete. He
admits that he drew the draft on Bloomer, given in evidence, under the
circumstances detailed by the other witness, but says he had no authority to
draw the draft, but thought he had been badly used by the plaintiff; was among
strangers, in a difficulty, and was determined to extricate himself in the
best way he could. The witness took the raft at Hannibal, sold it, and paid
the proceeds, after deducting expenses, to Bloomer. Witness was, and had been
for several years, the clerk of Bloomer, and his agent in transacting the
business of Bloomer, who is a lumber dealer, and received a salary from
Bloomer, which continued to run whilst engaged in this expedition down the
river, though he was also paid for this trip by Clinton.

In the progress of the trial, the following instructions were given, at the
instance of the defendant: 1. The court is asked to instruct the jury, for the
defendant, that if they believe from the evidence that the raft of lumber
belonged to Clinton, and was intrusted by Clinton to Johnson, to be sold on
his, Clinton's account, and to be at the risk and cost of Clinton, until it
was sold, that then Bloomer is not liable for any costs or expenses incurred
on account of the raft, although the proceeds of the raft when sold were paid
over to Bloomer, on a debt due him by Clinton. 2. That if they believe from
the evidence that the raft was the property of Clinton, and was to be carried
to market at the expense and cost of Clinton, and not at the cost of Bloomer,
and that Johnson was acting for Clinton, and at his request, in the sale of
the lumber, that then Bloomer would not be responsible for money received or
expenses incurred by Johnson, in getting the raft to market. 3. That the fact
of Johnson being along with the raft, for the purpose of receiving the money,
and paying it over to Bloomer, on Clinton's account, would not authorize
Johnson to bind Bloomer for expenses incurred in taking the raft to market, if
the jury believe from the evidence that the raft was the property of Clinton,
and to be taken to market at Clinton's expense. 4. That the fact of Johnson
being the clerk of Bloomer, and engaged in transacting business for him would
not authorize Johnson to bind Bloomer for expenses incurred by Clinton, in
reference to Clinton's business. 5. That the jury ought not to find a verdict
against Bloomer in this case, unless they believe from the evidence, that the
raft, on account of which the money was obtained, was the property of Bloomer;
or that Johnson had authority from Bloomer to bind him for debts contracted on
account of said raft. 6. That if the jury believe from the evidence that
Johnson drew a draft in favor of Denman on Bloomer, without authority from
Bloomer to do so, that then Bloomer would not be responsible for the amount of
said draft, but that Denman would have to look to Johnson for the amount of
said draft. 7. That unless the jury believe from the evidence that Bloomer is
indebted to Denman, for money lent by Denman to Bloomer, or for money paid by
Denman to Bloomer, at Bloomer's request, or for money received by Bloomer for
Denman, or for money found to be due from Bloomer to Denman, on a settlement
of accounts between them, that then they will find a verdict for the
defendant. 8. That even if the jury believe from the evidence that the raft in
question belonged to the defendant, Bloomer, and that he sent Johnson down the
river with said raft, to sell as his, Bloomer's agent, and pay the proceeds of
such sale to Bloomer, and if the jury further believe frqm the evidence that
said Johnson, in pursuance of his said agency, sold the said raft to Denman,
and delivered it to Denman's agent, at the place specified by him for that
purpose, and that Denman thereupon paid said Johnson a part of the purchase
money of said raft, then, under these circumstances, the said Johnson would
not have any right to rescind said sale, and draw a draft upon Bloomer for the
amount paid him by Denman; nor would Bloomer be legally bound to repay Denman
the amount so paid by him to Johnson.

To the giving of these instructions the plaintiff excepted. The plaintiff then
moved the court to give the following instructions, which was done: 1. If the
jury believe from the evidence that Johnson was the duly authorized agent of
Bloomer; that as such agent he had 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
representations of Johnson, then Bloomer is not permitted in this suit to deny
that he was the owner of said raft. In such cases the principal is bound by
the representations of his agent, made at the time of transacting the business
about which the representations were made. 2. If the jury believe from the
evidence the facts upon which the first 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, said Johnson
took charge of said raft, in behalf of his principal, and on a settlement with
the plaintiff, promised, on behalf of the defendant, to repay said plaintiff
whatever money had been paid and expended by said plaintiff about said raft,
then no question arises in the case about the delivery of said raft to the
plaintiff, before said raft broke from its fastenings, and the jury will find
for the plaintiff a verdict for such amount as he may have paid upon and about
said raft, with interest thereon from the time such amount was to be repaid to
said plaintiff. 3. If the jury believe from the evidence that the agent of the
defendant, duly authorized by the defendant to transact his business in
relation to said raft, admitted, in a settlement with the plaintiff of the
business arising from said raft, that the sum of $345 was due to the plaintiff
from the defendant, then such admission is the same as if it had been made by
the defendant himself. An admission by a man's agent, in relation to business
which he is authorized to transact, and made at the time of transacting such
business, is regarded by the law as an admission of the principal himself. 4.
If the jury believe from the evidence that Denman paid a certain sum of money
to Johnson, as agent of Bloomer, which money Johnson was authorized to
receive, and did receive, as agent of Bloomer, and used for Bloomer's benefit,
then the jury will find for the plaintiff a verdict for such sum, with
interest thereon from the time such money was agreed to be repaid.

The defendant then moved the court to give the following instruction; which
the court accordingly gave: 9. That although the jury may believe from the
evidence that Johnson was Bloomer's agent, and in his employ for the
transaction of his, Bloomer's business, that this would not authorize Johnson
to bind Bloomer for debts incurred in relation to the business or property of
other persons. And if they, also, believe from the evidence that the raft was
the property of Clinton, that then Johnson would have no right to bind Bloomer
for the expenses of said raft, notwithstanding he was Bloomer's agent at the
same time, for other purposes.

To the giving of this instruction plaintiff, also, excepted. The following
instruction was given, at the instance of the plaintiff: 5. The jury are
further instructed, that the instructions asked and given for the defendant in
this case, while they lay down correct principles of law, are yet to be taken
by the jury, subject to the modifications to be drawn from the instructions
given for the plaintiff in this case, relative to the manner in which an agent
can bind, his principal, and in relation to the manner in which a man may be
estopped from denying what his duly authorized agent has represented to other
persons dealing with such agent.

The defendant then moved the court to give the following instruction: 10. That
the plaintiff's instructions are given subject to all the modifications
contained in those given on behalf of defendant; which the court accordingly
gave, and the plaintiff excepted. The jury found a verdict for the defendant.
A motion for a new trial was made, and overruled, and judgment given for the
defendant. Cause heard before Minshall, judge, at June term, 1849. The
plaintiff sues out the writ of error, and brings the cause to this court.

In support of the motion for a new trial, the plaintiff filed his affidavit,
stating that he had been greatly surprised by that portion of the testimony of
Johnson which stated that he, Johnson, was the agent of Clinton, and not of
Bloomer, in selling the raft; and that he had no witness present at the trial
to rebut this statement, but that he could rebut that portion of the testimony
by divers persons, whom he named: the affiant never having heard, prior to the
trial, the name of Clinton in connection with the transaction.

The plaintiff assigns for error, the giving of the instructions for defendant,
and the refusal to grant a new trial.

Williams & Lawrence, for plaintiff in error: The first instruction was wrong,
because founded on a partial view of the case, and because it takes from the
consideration of the jury, altogether, the facts which the plaintiff's
evidence undeniably tended to prove, and, as we contend, did satisfactorily
prove. This instruction directs the jury to find for the defendant, if they
believe merely that the raft belonged to Clinton, and was intrusted by him to
Johnson, to be sold. Yet there was strong evidence to show that Johnson was
Bloomer's agent, and that Denman dealt with him as such; and that in such
dealings Johnson represented to Denman that the raft was Bloomer's. If the
jury believed this evidence, then Bloomer was estopped to deny that the raft
was his, although in point of fact it belonged to Clinton. 1 Greenleaf Ev.,
249, sec. 207-8; ibid, sects. 113, 114. The first instruction, then, should
have received such a qualification as the following: "unless the jury further
believe that Johnson was the authorized agent of Bloomer, in regard to this
raft, and that in selling said raft to Denman he represented it to be
Bloomer's property, and that he was Bloomer's agent, and Denman dealt with him
in the manner he did on the faith of such representations, in which case they
must find for the plaintiff." "When the language of an instruction as asked is
calculated to mislead the jury, it should be so modified or changed as to
prevent such a result." Hays v. Borders, 1 Gilm., 66. A party asking
instructions must either confine them, (if they are of partial application
only,) in terms, to the particular issue to which they were intended to apply;
or must modify them in such a manner as will make the jury aware that it is
only in the event that other issues are not found against him, that they can
base their verdict, if supported by facts, on the law, asked in his favor by
him. Valandingham v. Huston, 4 Gilm., 127. As an instance of how the court
should and does modify instructions, when of partial application, in cases
where there are not different issues but conflicting evidence, see Baxter v.
The People, 3 Gilm., 383. The law of 1846-7 in regard to instructions, does
not change this rule. Bunn v. The People, 4 Gilm., 441. The fourth instruction
was manifestly wrong, for it asserts the extraordinary proposition that an
agent can not bind his principal for expenses incurred by a third person, in
reference to such third person's business, though it is equally the business
of the agent's principal. As applicable to this case the instruction says,
that Johnson could not bind Bloomer, in reference to Bloomer's business, if it
was also the business of Clinton. The fifth instruction is liable to the same
objections urged to the first. The sixth instruction was clearly wrong, since
it goes upon the idea that the suit was brought upon the draft; which was not
the fact. The seventh instruction was designed and calculated to mislead the
jury, and could have no other effect, and submitted to the jury a question of
law. The eighth instruction asserts a proposition of law that is clearly
wrong. A special agency includes general powers as to the object of the
special agency. The case of Anderson v. Coonley, 21 Wend., 279, is decisive as
to this point. So also the note to Story on Agency, 3d edition, page 148, sec.

127. But this instruction, in substance, directs the jury that even a general
agent can not rescind a sale. The ninth instruction is open to the same
objections urged to the first and fourth. Where an erroneous instruction of
the judge could have influenced the jury, a new trial will be granted. Lane v.
Crombie, 12 Pick., 177; Boyden v. Moore, 5 Mass., 371; Pate v. The People, 3
Gilm., 661; Snyder v. Laframboise, Breese, 268; Elting v. Bank of U. S., 6
Pet. Con. Rep., 220; Wilson v. Rastall, 4 Term R., 758, bottom paging;
Williams v. Cheesbrough, 4 Conn., 362. And this, though the evidence may have
justified the verdict. Leonard v. Smith, 11 Met., 330; James v. Langdon, 7 B.
Monroe, 193; Wardell v. Hughes, 3 Wend., 419; Gaines v. Buford, 1 Dana, 502;
Gillespie v. Gillespie, 2 Bibb, 89. To show how decisive is a misdirection of
the court on a motion for a new trial, as compared with other causes, see
Graham on New Trials, page 265, and cases cited; 3 J. R., 180; Holliday v.
Atkinson, 11 Eng. Com. Law, 287. As to the affidavit: cases in which new trial
has been granted to plaintiff, on ground of surprise: Peterson v. Barry, 4
Binney, 481; Weak v. Callaway, 7 Price, 677, quoted Graham on New Trials, 183;
Edie v. East Ind. Co., 1 W. Black., 295; Mies v. Brackett, 15 Mass., 359;
marginal paging. Further as to surprise: M'Farland v. Clark, 9 Dana, 134;
Cutler v. Rice, 14 Pick., 494; Millan v. Field, 3 A. K. Marsh., 110. The new
evidence disclosed in the affidavit is not cumulative. Cumulative evidence is
evidence of the same kind, to the same point; and an admission of a party is
not cumulative. Parker v. Hardy, 24 Pick., 248; Schlencker v. Risley, 3 Scam.,
487.

R. S. Blackwell, for defendant in error: 1. There was a complete and perfect
sale and delivery of the raft to Denman. Wing v. Clark, 24 Maine R., 366;
Lansing v. Turner, 2 John. R., 13; Smith v. Nevill, Walker's R., 370. Whether
the sale was complete or not, is a question of fact for the jury. De Rudder v.
M'Knight, 13 John. R., 293; Byer v. Elvine, 2 Gil., 162; 9 Pick., 209-10;
Hondlette v. Tallman, 14 Maine R., 400; Blenkensop v. Clayton, 2 Eng. C. L.
R., 230-1; Phillips v. Bristolli, 9 Eng. C. L. R., 162; Chaplin v. Rogers, 1
East R., 192; Caldwell v. Smith, 3 and 4 Dev. & Bat., 64. If the sale was
actually completed, Johnson, being a special agent, had no authority to
rescind the sale. Story Agency, sec. 96; Bradford v. Bush, 10 Ala. R., 389;
Peters v. Ballistier, 3 Pick. R., 503; Thorndike v. Godfrey, 3 Green. R., 429;
Rossiter v. Rossiter, 8 Wend. Rep., 494. Whether Johnson did exceed his
authority, in rescinding the sale, was also a question of fact, proper to be
left to the jury. M'Morris v. Simpson, 21 Wend. R., 610; Mechanics' Bank v.
Bank of Columbia, 4 U. S. Cond. R., 671. The acts of Bloomer do not amount to
a ratification of the contract, because he did not possess a full knowledge of
all of the facts of the case. Owings v. Hull, 9 Peters, 628-9; Thorndike v.
Godfrey, 3 Greenl. R., 429. The circumstances negative the idea of a
ratification and promise. Peters v. Ballistier, 3 Pick., 504-5. And if Bloomer
made one, it is nudum pactum. Fenn v. Harrison, 3 T. R., 754; May v. Coffin, 4
Mass., 341. 2. Whether Johnson was the agent of Bloomer or Clinton, was a fact
for the jury to determine. The declarations of Johnson were not competent
evidence to establish the fact that he was the agent of Bloomer. 2 Stark. Ev.,
34-5; 1 Greenl. Ev., 137, sec. 113; Story on Agency, sec. 135; 2 Greenl. Ev.,
46, sec. 59-60. 3. If Clinton was the owner of the raft, and Johnson was his
agent in the sale and rescission of the contract, this action can not be
maintained against Bloomer, because there is no privity between him and
Denman. England v. Clark, 4 Scammon, 486, 489, 493; Williams v. Everett, 14
East, 598; Tiernan v. Jackson, 5 Peters, 599, 603. The court will not disturb
the verdict of a jury, unless it is manifestly and palpably contrary to the
evidence in the case. Dawson v. Robbins, 5 Gilman, 72; Kincaid v. Turner, 2
Gilm., 618. Nor merely for the reason that upon such evidence they would have
found differently. Wendell v. Stafford, 12 N. H. R., 171. Nor where the
credibility of witnesses is to be considered, presumptions to be raised, and
inferences to be made, and where the nature of the evidence is such that
different persons might reasonably have different impressions of the case.
Wendell v. Stafford, 12 N. H. R., 171. Nor in any case where the court is
satisfied, from an inspection of the whole record, that justice has been done.
Peck v. Land, 2 Kelly R., 16. Nor will a new trial be granted because the
court below misdirected the jury on a question of law, if this court can see
from the whole record, that the verdict is right. Greenup v. Stoker, 3 Gilm.,
202; Leigh v. Hodges, 3 Scam., 15; Gelett v. Sweat, 3 Gilm., 644; Seare v.
Prentice, 8 East, 348; Edmondson v. Muchell, 2 T. R., 4; Estwick v. Carlland,
5 T. R., 426; Fleming v. Gilbert, 3 Johnson, 528; Harris v. Doe, 4 Blackford,
370. Nor can a plaintiff claim a new trial because he was surprised by the
evidence of the defendant. Cummings v. Walden, 4 Blackf., 370; Jackson v. Roe,
9 John., 77; Ford v. Tilly, 2 Salk., 653; Price v. Brown, 1 Strange, 691;
Alexander v. Byron, 2 John. Ca., 318; Knox v. Work, 5 Binn., 582, and note;
Marriott v. Hampton, 7 T. R., 142. The affidavit is not set out in the record,
and this court can not, therefore, take notice of it. Petty v. Scott, 5 Gilm.,
209.

Browning & Bitshnell, on same side: I. There was in this case a complete and
perfect sale and delivery of the raft to Denman, sufficient to vest the title
in him. 1. Where there has been a delivery of the goods, actual or virtual,
and no further act remains to be done by the vendor, the title of the property
passes to the vendee; even where some act remains to be done by the vendor,
and the transaction shows the parties understood the sale to be complete, and
where the delivery is in the only convenient mode, the title passes. Hinde v.
Whitehouse, 7 East, 558, 571; Jewell v. Warren, 12 Mass., 309; Boynton v.
Vesey, 24 Maine, 286; Macomber v. Parker, 13 Pick., 175; Sudwig v. Fuller, 17
Maine, 162; Hollingsworth v. Bales, 2 Black. 340; Jennings v. Webster, 7 Cow.,
256; 14 Wend., 664-5-7. It is only where some act remains to be done by the
vendor, without which the vendor has no right to take possession of the goods,
and until which is done they remain in the power and control of the vendor,
that the question as to whether an act is to be done is material. The act must
be one which is to be done by the vendor, and in the nature of a condition
precedent. Davis v. Hill, 3 N. Hamp., 382; Hanson v. Meyer, 6 East, 615, and
note; The People v. Haynes, 14 Wend., 564-5, 567; Outwater v. Dodge, 7 Cow.,
85. 2.

Where there is an actual delivery of property, the sale is complete, though,
by the understanding of the parties, something is still to be done. The
doctrine, that some act to be done prevents the completion of the sale,
applies only to cases of symbolical delivery, not to cases where there is an
actual delivery. The delivery is to be made according to the nature of the
property. Sumner v. Hamlet, 12 Pick., 76, 82; Macomber v. Parker, 13 Pick.,
175; Boynton v. Vesey, 24 Maine, 286; Jackson v. Warren, 12 Mass., 309. The
real question is not as to whether some act is to be done, but whether, under
the actual arrangement, the vendee has the right to possession, before it is
done. If soothe delivery is complete. Sudwig v. Puller, 17 Maine, 162; Boynton
v. Vesey, 24 Maine, 286. Thus the delivery of a part is a delivery of the
whole, and the title to the balance is passed, though it yet remains to be
separated from the mass. Damon v. Osborn, 1 Pick., 476, 481; Parks v. Hall, 2
Pick., 206; Shelby w. Hayward, 2 H. Black., 504, 509. 3. Indeed, as between
the vendor and vendee, at common law, no delivery, actual or symbolical, is
necessary. The completion of the bargain is, at common law, all that is
required to pass the title. Delivery becomes necessary as to third parties
under the statute of frauds. 2 Black. Com., 488; Willis v. Willis, 6 Dana, 48;
Shumway v. Rutter, 7 Pick., 56; same case, 8 Pick., 443; Haskell v. Greely, 3
Greenl., 425; M'Coy v. Moss, 5 Porter, 88; The State v. Fuller, 5 Iredell, 26;
Parsons v. Dickinson, 11 Pick., 352; Hosban v. Brawell, 16 Ohio, 509; Rucker
v. Cross, 5 N. Hamp., 579; Champion v. Searl, 3 Pick., 38, 42. Where the terms
of the sale are agreed on and the bargain struck, every thing the seller has
to do with the goods, before the vendee has the right to take the possession
of them, is complete, the contract of sale becomes absolute, and the property
of the goods is in the buyer, and if destroyed by fire or other accident he
must suffer the loss. Wing v. Clark, 24 Maine, 366; Lansing v. Turner, 2
John., 13; 2 Sup. U. S. Dig., 715, sec. 113; Smith v. Nevill, Walker Rep.,
113. In this case there was nothing to be done in part, the sale was a unit;
the measuring, so far as the bill of exceptions show, might and was only for
the satisfaction of Denman. 6 East, 626; 5 Bos. & Pul., 69. 4. Whether there
has been a completion of the sale by delivery, is often a question as to the
understanding and intention of the parties at the time; it depends on
circumstances, the nature and situation of the property, the agreement and
understanding of the parties. Whether the sale has been completed is a
question of fact for the jury. De Rudder v. M'Knight, 13 John., 293; Byer v.
Elmire, 2 Gil., 151, 162; 19 Pick., 209-10; Mason v. Leshbarrow, 1 H. Black.,
351-363-4; Phillips v. Bristolli, 9 Eng. Com. Law, 162; Lansing v. Turner, 2
John., 13, 17; Hondlette v. Tallman, 14 Maine R., 400; Caldwell v. Smith, 3
and 4 Dev. and Bati, 64; Chaplin v. Eogers, 1 East, 192; Blenkinsop v.
Clayton, Eng. Com. Law Rep., 230. 5. There was no privity of contract between
Bloomer and Denman. The action for money had and received is based on privity.
The surplus fund was received on Bloomer's own account, as of Clinton.
Campbell v. Trumbull, 3 Gil., 502; Tiernan v. Jackson, 5 Pet., 580, 594, 598,
599, 600; England v. Clark, 4 Scammon, 486, 489, 493; 14 East, 582; Chitt.
Cont., 480, 484, a.

II. Johnson was the special agent of Clinton for some purposes, and the agent
of Bloomer for others. The most that could be said from any view of the
evidence, is that he was the special agent of Bloomer to sell Bloomer's raft,
as assumed in one of defendant's instructions. Having as special agent made
the sale and received a part of the purchase money, he could not cancel the
sale, or rather, as it in fact would be, re-purchase the property. The power
to sell the raft for Bloomer would give him no power to buy lumber, and bind
him for the purchase money. The distinction between a general and special
agent is well settled. 1. A person authorized to do a particular act, or
purchase or sell a particular parcel, is a special agent. A person employed to
do all acts, or purchase or sell all goods required in a particular business
employment, is a general agent. Story on Agency, secs. 17, 18, 19, and notes
to pages 122 and 131; Rossiter v. Rossiter, 8 Wend., 494; Peters v.
Ballistier, 3 Pick., 495; Jacques v. Todd, 3 Wend., 91; Fenn v. Harrison, 3 T.
R., 754; Beals v. Allen, 18 John., 363. Johnson could be the special agent of
Clinton for one purpose, whatever might be his relations to Bloomer for other
purposes. 12 Pick., 82. 2. A special agent can bind his principal only to the
extent of his special authority, and his powers will be strictly construed.
The acts of agents do not derive their validity from purporting to be done
within the scope of their powers. They must be so done in fact. The person
dealing with him must know the extent of his authority. Story's Eq. secs. 80,
92, 96, 98, 99, 114, 121, 125, 131, and note 133; 14 Eng. Com. Law, 43-4;
Mechanics' Bank v. Bank of Columbia, 4 Cond., 671. The extent of authority of
an agent is a question for the jury. 21 Wend., 610; 1 Pet., 289-90. 3. Even a
general agent will be confined to the employment in which he is engaged,
however broad and comprehensive the terms in which his general power is given.
These cases show the strictness of construction applied to the powers of
agents, whether general or special. Story's Ag., secs. 21, 22, 62, 69;
Rossiter v. Rossiter, 8 Wend., 494; Atwood v. Munnings, 14 Eng. Com. Law, 45;
Kilgour v. Finlyson, 1 H. Black., 155; Nixon v. Hyserott, 5 John., 58; Potter
v. Dennison, 5 Gilm., 590, 598, 599. As to the livery stable case in 3 T. R.,
761, see Story's Agency, p. 122, and note; Pickering v. Bush, 15 East, 45. 4.
A power to a special agent to sell can not make representations about the
property to bind his principal. He can sell, and do nothing else. Gibson v.
Colt, 7 John., 390; Nixon v. Hyserott, 5 John., 58. Nor can he bind his
principal by a note, payable in the property he is authorized to sell.
Dunnyson v. Tyson, 17 Vermont, 549, 554; Smith v. Gibson, 6 Blackf., 369. 5.
Having made a sale, he can not afterwards cancel it, and take back the
property, unless in pursuance of some usage of trade to that effect. Story on
Ag., secs. 86, 87, 88, 89; Bradford v. Bush, 10 Alabama, 386; Thorndike v.
Godfrey, 3 Greenl. 429, 431. Nor is there any reason why he should have the
power to recall or re-purchase the property after sale. The only one which
could be urged, would be thereby to secure his principal against loss, from
the insolvency of the vendee. But a special agent, to sell, can sell only for
cash, and the insolvency of the vendee can not, therefore, affect the
principal. Story Ag., secs. 77, 78; Delafield v. Illinois, 2 Hill, 159; Palls
v. Gaither, 9 Porter, 605. 6. A promise of the principal to pay money, on a
transaction wherein the agent had no authority to bind him, is a nudum pactum.
In this case, it is clear Bloomer never intended to make a binding promise;
for he all the time refused to pay or to accept the bill. Penn v. Harrison, 3
T. R., 754; May v. Coffin, 4 Mass., 341; Tower v. Durrell, 9 Mass., 332. And
any promise to bind the principal in such case, or in any case where the agent
had acted without authority, should be clearly shown to have been made with a
full knowledge of the facts, and the promise must be full and unequivocal.
Story's Ag., sec. 244, and note 245, 246; Thornton v. Wynn, 6 Cond. E., 508,
512; Trimble v. Thome, 16 John., 151, 153; Garland v. Salem Bank, 9 Mass.,
408; Miller v. Hackley, 5 John., 375, 384-5; Bell v. Cunningham, 3 Peters, 69,
80, 81; Owings v. Hull, 9 Peters, 607, 629; Blevins v. Pope, 7 Alabama, 371;
Thorndike v. Godfrey, 3 Greenl., 429, 432; Smith v. Gibson, 6 Black., 367.

III. No cause for a new trial. The evidence to sustain the verdict of the jury
is abundant. 1. It is only in cases where the verdict strikes the mind, at the
first blush, as manifestly and palpably contrary to the evidence, that the
supreme court will, for that reason, interfere to set it aside. Dawson v.
Bobbins, 5 Gilm., 72; Kincaid v. Turner, 2 Gilm., 618. Nor will the court set
aside the verdict because, on an examination of the evidence, the court might
have arrived at a different conclusion. Wendell v. Stafford, 12 N. Hamp., 171.
Nor where the credibility of witnesses is to be considered, presumptions to be
raised, or inferences to be made; or where, from the character or nature of
the evidence, different persons might come to different conclusions. Wendell
v. Stafford, 12 N. Hamp., 171; Rowley v. Kinney, 14 John., 186. Nor where
justice has been done, even though the verdict is against evidence. Peck v.
Land, 2 Kelly R., 16. 2. Nor will the court grant a new trial, because the
court below misdirected the jury, if the supreme court can see from the whole
record that justice has been done. Greenup v. Stokes, 3 Gilm., 202; Leigh v.
Hodges, 3 Scam., 15; Goodell v. Sweat, 1 Gilman, 475; Seare v. Prentice, 8
[*191] *East, 348; Pate v. The People, 3 Gilm., 644; Edmonson v. Muchell, 2
T.R., 4; Eastwick v. Calland, 5 T. R., 426; Fleming v. Gilbert, 3 John., 528.
3. Nor is there any ground shown in the record for a new trial, on the ground
of surprise. Neither the reasons for a new trial, nor the affidavit, are
contained in the bill of exceptions; nor does the bill of exceptions purport
to contain them. They are no part of the record. They should have teen
specifically referred to and identified by the bill. Vanlandingham v. Fellows,
1 Scam., 233; Pry v. Riley, 3 Scam., 259; Saunders v. McCollins, 4 Scam., 420;
Corey v. Russell, 3 Gilm., 366; Wyman v. Wood, 25 Maine, 436; Wadlington v.
Gary, 7 Smedes & Marsh., 522; Edwards v. Patterson, 5 Gilm., 126; Holmes v.
The People, 5 Gilm., 479. 4. A plaintiff can in no case claim a new trial, on
the ground that he was surprised by defendant's testimony, and had not come
prepared to meet it. He may suffer a non suit and recommence, but shall not
lie by and speculate on the verdict. He may be surprised when the evidence is
given, but he is not surprised when he, of his own accord, submits his case to
the jury on the evidence, after he knows what it is, and when his position as
plaintiff permits him to retreat. It is otherwise with the defendant, perhaps:
he can not retreat. Cummings v. Walden, 4 Blackf., 308; Cook v. Berry, 1
Wilson, 98; Jackson v. Roe, 9 John., 77; Price v. Brown, 1 Strange, 691; Knox
v. Work, 2 Binn., 582, and note; Alexander v. Byron, 2 John. Ca., 318;
Marriott v. Hampton, 7 T. R., 142. 5. Nor will a new trial be granted on the
ground of newly discovered evidence, where the evidence was known before the
trial, or by reasonable diligence might have been produced; or where the
object of the new evidence is to impeach a witness. This was all known to
Denman before the trial; and as he was dealing with an agent, ho was bound to
come prepared to prove that defendant was the responsible principal, and not
rely on its being admitted or proved by defendant on the trial. Coe v. Givens,
1 Black., 367; Williams v. Baldwin, 18 John., 499; 15 John., 213; 5 John.,
248; 3 John., 256; 1 Scam., 491; 1 J. J. Marsh., 590; Wheelwright v. Beers, 2
Hall, 391, 402; 3 Scammon, 486. Nor to admit evidence of the admissions of the
opposite party. The cases of the party moving for a new trial on this ground,
are persons acting in a fiduciary or representative capacity. Gugot v. Butts,
4 Wend., 479. The affidavits of the proposed new witnesses should, at least,
have been produced, to show they were ready to give the proposed testimony. 4
Blackf. Rep., 98; 1 Hall, 382.

As Mr. Bushnell was proceeding to answer the arguments urged for a new trial,
for the reason that plaintiff was surprised by the testimony of Johnson, he
was stopped by the court, with the suggestion that the plaintiff should have
taken a non suit in the court below, if he did not wish to go to the jury upon
the evidence presented. He ought not to be allowed to take his chance for a
verdict and then complain that he has been surprised.

Caton, J. The fifth and eighth instructions given for the defendant, were
erroneous. The eighth instruction supposes that Bloomer was the owner of the
raft, and that Johnson was his agent to sell it, and receive the purchase
money. The jury were then instructed, that if Johnson had sold and delivered
the raft to Denman, and received a part of the purchase money, he had no
authority to rescind the sale, and make Bloomer liable for the money thus
received.

An agent appointed for a special purpose to transact a particular business,
can not go beyond the scope of such an appointment, and bind his principal;
nor can he act after such employment ceases, by his having completed and
closed up the business, to transact which he was constituted an agent; but
within the scope of such employment, and until the power conferred is thus
exhausted, or has been revoked, the agent can bind the principal, to the same
extent that the latter could have bound himself. In this case, Johnson's
powers had not terminated by his having completed the business confided to
him. He had sold the raft, it is true, but he had received only a part of the
purchase money, while his employment required him to collect the whole. To
deny the authority of the agent to take back the raft, while the transaction
was thus incomplete, would often prove most detrimental to the principal.
Suppose the agent had. discovered that Denman was insolvent, and that, in all
probability, the balance of the purchase money would be lost, authority to
rescind the sale, and take back the raft, would have been indispensable to
enable him to protect the interest of the principal.

This is not so strong a case as that of Anderson v. Coonley, 21 Wend., 279.
There the agent was authorized to contract for barley, and it was held, that
he might rescind a contract which he had made, so long as his authority to
make other purchases still continued. The case of Bradford v. Bush, 10
Alabama, does not conflict with the principles above laid down, or with the
case referred to. There the agent was authorized to sell some horses, which
lie disposed of to the defendant, and received other property, and a note, in
payment. It was held that the agent could not, at a subsequent time, bind his
principal, by a new agreement, to make good a defect in some of the horses.
Clearly, in this case, the powers of the agent were exhausted, and his
authority terminated. The case before us, however, was very different. The
agent had but partially completed the transaction, when he thought proper to
rescind what had been done; and in doing this, we think he acted within the
scope of the authority, which the instruction supposes was conferred upon him,
and perhaps for the best interests of his principal.

The fifth instruction, also, should have been refused. All that is assumed in
that instruction might have been true, and the plaintiff still entitled to
recover. It will be sufficient to give one assumed state of the case, to show
this. Bloomer might have ratified all that Johnson is supposed to have done in
his name; in which event, the defendant's liability would have been the same
as if the agent had acted strictly in pursuance of his original appointment.
This same objection may be urged to the eighth instruction. It is not
sufficient that the necessary qualification may be found in the instructions
given for the plaintiff; unless we can say, with entire confidence, that the
jury could not have been misled by the erroneous instruction. After looking
through all the instructions given for both parties, we are by no means
prepared to say, that the jury must, necessarily, have understood the law of
the case properly. Each party should see that his own instructions are proper
in themselves.

The impropriety of giving instructions like those given in the present case,
subject on one part to the modifications of the instructions given on the
other, is thus spoken of in Gregory's Heirs v. Ford, 5 B. Monroe's Reps.,
473: "The instructions asked for by the plaintiff are said, in the bill of
exceptions, to have been given 'with the qualifications contained in the
instructions given on the part of the defendants;' as the instructions given
for the defendants are numerous and complicated, this general reference to
them, as qualifying instructions, apparently given for the plaintiff, without
designating the particulars in which they are intended to be qualified, or
pointing out the particular instructions which conflict with each other, is
objectionable, as wanting that certainty which is requisite to enable the jury
correctly to apply the law to the facts before them."

The judgment below is reversed, with costs, and the cause remanded.

Judgment reversed.

-----------------------
Approved—Farrell v. People, 16 Ill., 506; Coughlin v. People, 18 Ill., 266;
Cited—Bloomer v. Denman, 12 Ill., 240; Chi., B. & Q. R'y Co. v. Lee, 60 Ill.,
501.

(1) See Bloomer v. Denman, 12 Ill., 240, note 2.

Additional Comments:
Reports of Cases Argued and Determined in the Supreme Court of the State of
Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By
Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar.
CHICAGO: CALLAGHAN & CO. 1886.

 

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