21 Md. 186 | Md. | 1864
delivered tide opinion of this Court:
This suit was brought to recover advances upon an invoice of beef consigned by the appellant to Messrs. Huth & Co., of London. The advances were made to an amount largely exceeding the proceeds of the invoice, by drafts on Huth & Co., who had authorized the appellees to draw for the advances, upon their undertaking to be responsible for the amount of their overdrafts. When these advances were made, the appellees, to protect themselves from loss, obtained from the "appellant his promise to' refund the amount advanced above the proceeds of his consignment. The relation of Huth & Co. to the appellant, thus appears to have been that of an agent or factor, and towards the appellees that of a principal, entitled upon their contract to repayment of the amount overdrawn. The principles applicable to these relations must therefore be regarded in disposing of the questions presented by these exceptions. Assuming that Huth & Co. performed their duties as consignees or agents with due care and skill, we may remark generally that they have the right to be reimbursed to the full amount of their advances, and that they may assert that right against the appellant as their principal, giving him credit for the proceeds of his consignment, or against the appellees upon their undertaking of that liability; and the appellant may be required to refund to either of these parties, although he can be compelled to make but one satisfaction. If, however, there was negligence or misconduct on the part of Huth & Co., by which he sustained loss or damage, their right, as well as that of the appellees, to recover the excess of advances above the proceeds of the consignment, at most is only a qualified one, for the appellant may rely upon such negligence or misconduct as a defence
The appellant’s second prayer was properly refused. He appears to have made the consignment without any restrictions, and also to have authorized, his consignees to deal with it as their own. Under these circumstances, it is difficult to perceive upon what ground ho was entitled to notice from them of its depreciated value before selling it. The proposition of the prayer appears to be founded upon no defined or established rule of law applicable to that relationship of the parties.
The first exception taken to the admission of evidence, we think cannot be sustained. Evidence in regard to certain sales made in London, of beef cured and packed by the appellant, had been previously offered without objection, for the purpose of showing or raising a presumption of negligence on the part of Huth & Co., and the evidence in question was offered to show the sale of other beef shipped by the appellant to the same market, for the purpose of rebutting or destroying the effect of that before offered. The objection was taken on the ground that the rebutting evidence did not relate to the same subject-matter, and for that reason was not admissible. We find by examining the testimony of Hawkins, Hackett and Adams, that there was a conflict of evidence on that point, and that the Court could not have sustained the objection taken without assuming, that the beef spoken of in the evidence objected to was not cured by the appellant. That we think the Court was not at liberty to do, and although the objection might have been successfully presented by an instruction to the jury that this evidence was not to be considered, if they should find that the beef mentioned was not cured by the appellant, still, we think, as it comes before us in this exception, that the ruling was proper.
Finding that the Court erred in granting the appellees prayer, we shall reverse the judgment.
Judgment reversed, and procedendo awarded.