17 Ala. 774 | Ala. | 1850
This was an action of, assumpsit, brought by Harrison & Robinson against the plaintiff in error, to recover certain monies paid by them for Brown, and for certain commissions which they insisted they bad the right to recover.
It appears by a bill of exceptions, that the plaintiffs below were commission merchants'of the city of Mobile, and had accepted for the accommodation of Brown a bill of exchange drawn upon them by him for $1756 57. and that Brown had failed to pay the bill at maturity; and there was proof conducing to show that they were compelled to pay the same, to save themselves from protest — Brown not having provided them with any funds to make such payment. The plaintiffs below were allowed to prove, against the defendant’s objection, that there was a custom or usage among the commission merchants of Mobile, to charge two and a half per cent, for accepting bills or drafts, and a further sum of two and a half per cent, for advancing the money thereon at maturity, or paying the same in consequence of such acceptance, provided they were not'placed in funds by the drawer, at the maturity of the bill; and that the two and a half per cent, so charged was upon the aggregate amount of the bill or draft so accepted or paid. The proof left it doubtful, whether the plaintiffs had advanced the money to Brown himself and retained the bill, or whether it had been negotiated to a third party and had been paid to such endorsee. The plaintiffs were shown to be men of capital, and the evidence showed that it was customary for men of capital, engaged in the business of commission merchants, to charge the above commissions, whether the bill had been negotiated or retained by them.
The court charged the jury, that if they believed the plaintiffs had -advanced the money at the time of their acceptance of the
The Circuit Court also excluded a written statement, in the hand writing of one Salomon, who was proved to have been the clerk of the plaintiffs in 1846 and 1847, when the bill above alluded to was made, but who had been a dormant partner with plaintiffs since January 1848. This statement was without date, and was not signed by any one.. It set forth that the bill above mentioned was given to extend a debt due by draft of defendant on the plaintiffs for one year, and for which extension thirteen per cent, had been added. It was shown, in connection with the offer of this statement, that it was the duty of Salomon to furnish the customers of the house of Harrison & Robinson with such statements of their indebtedness, while he was the book-keeper of said concern, and that the defendant was a customer of said house.
Three points are presented by the assignment of errors, for our consideration. 1. The admission of proof of the custom. 2. The charge of the court in respect to' the five per cent, commissions. 3. The exclusion from the jury of the statement of Salomon. We may examine the first two together.
3. Upon the remaining point, we think the decision of the primary court correct. Salomon had ceased to be the clerk of the plaintiffs below, before this suit was commenced. It is a sufficient reason, why the statement proved to be in his hand writing-should have been excluded, to state that it is not shown to have been made out by him, when he was acting as such clerk and had authority to bind his principal by giving such a statement. The defendant should have shown, in order to make this paper evidence, that, at the time of its execution, Salomon, who gave it, was the clerk or book-keeper, with authority from his principal to furnish such statements. For aught that appears in the record before us, his agency may have ceased before he executed it, and in that event, it would not be contended that it was evidence. — See 1 Greenl. Ev., § 113, 8 Metc. Rep. 44.
For the error in the charge of the court, the judgment must be reversed and the cause remanded.