Calhoun v. Thompson

56 Ala. 166 | Ala. | 1876

BBICKELL, C. J.

1. The humane maxim of the law is, that no one is bound to accuse himself. A witness, though a party to the suit, can not be compelled to answer any question, the answering of which may expose, or tend to expose him, to a criminal charge, or to any kind of punishment. — 2 Phill. Ev. 929; 1 Green. Ev. § 451. In the first instance, it is the province of the court to determine whether any direct answer to the question proposed will furnish criminating evidence against the witness. If it is not apparent such would be the tendency of the answer, the witness is not privileged from testifying. "While it is of the highest importance to protect the witness from self-crimination, it is also of importance that the privilege the law extends to him should not be perverted to the suppression of evidence which can be safely given. — 2 Phill. Ev. 933. We can not discover that the evidence sought to be elicited could have the least tendency to criminate the witness. It may have a tendency to bring shame on, or degrade him. The privilege extends only to questions, the answers to which may criminate. — Hall v. State, 40 Ala. 706. An affirmative answer to the question would have introduced evidence of materiality in passing upon the bona fieles of the purchase of the horse. If it had been shown that McNulty had committed a criminal offense, and that the plaintiff, having knowledge of it, aided him to escape, his offense would have been that of an accessory after the fact, which is a mere misdemeanor. — R. C. § 3589. More than twelve months from the commission of the offense had elapsed, when the witness was testifying, and a prosecution for it was barred by the statute of limitations. —R. C. § 3952. The privilege extends only to offenses, for which the witness is liable to be punished, and does not exist when a prosecution is barred. — 2 Phill. Ev. 933 ; People v. Mather, 4 Wend. 229. The court was in error, in not compelling the plaintiff to answer the question propounded him on cross-examination : whether he did not go with McNulty from Tuskegee, on the night of the day he purchased from him the horse, that McNulty might get on the train.

2. Letters, the contents of which are material, should be produced, or, if not produced, their absence should be accounted for, before a witness can testify to their contents. A mere statement that the particular letter, the contents of which are to be introduced in evidence, was used before a justice of the peace, and can not be found, is not accounting for its absence, so as to let in secondary evidence of contents. By whom, or when, or where, or of whom, inquiry and search was made, is not shown. The existence of the letter, an ability on proper effort to produce it, was not negatived, and secondary evidence of its contents ought not to have been received. Nor was there evidence that the letter was in the hand-writing of Slorah, or that the witness Calhoun was capable of testifying to his handwriting.

3. A bailment is a contract, and its terms, and the rights and liabilities of bailor and bailee, depend on the agreement of the parties. As to third persons, a special property is incident to the possession of the bailee, which enables him to protect the thing bailed, from injury by mere wrongdoers, or to recover it from them. Unless it is a part of the contract of bailment, that the bailee may sell, we are not aware of any case in which a sale by the bailee will alter the general property of the bailor, and divest him of the right to maintain trover for its conversion, against the bailee, or the purchaser, or any one wrongfully assuming dominion under such sale. The first charge given by the court below was erroneous.

4. The second charge is also erroneous. If, as some of the evidence tends to show, McNulty had possession of the horse, as the agent of Titsworth, Scott & Co., to be used in conveying the sewing-machines about the country, for the purpose of sale, and had not authority to sell the horse, a sale made by him, whatever may have been the good faith of the purchaser, would not impair the title of his principals. All who deal with an agent are bound to inquire into and ascertain the extent of his authority. A purchaser of personal property acquires only the title of his vendor. If the agent exceeds his authority, the injury can not be visited on the principal, unless he ratifies the act; and it is the misfortune of those who deal with him in good faith, if they suffer loss because he has passed beyond the line of his authority; and it is the misfortune of those who purchase from vendors having no title, if they are compelled to yield the possession of the property to the rightful owner.

5. As a general rule, it is true, that a bailee can not dispute the title of the bailor. If the goods are not the property of the bailor — if in fact they are the property of another, who demands them of him, he may yield to such demand. Thereby he takes upon himself, if sued by his bailor, the burden of establishing the superiority of the title to which he yields. — Ogle v. Atkinson, 5 Taunton, 759; Edwards on Bail. 306; Crosswell v. Lehman, Durr & Co., MSS. The second charge given by the court was erroneous in each of its parts. The special property, imputed to McNulty’s possession of the horse, carried with it no power to sell; and if his principals had not conferred on him authority to sell, the sale made by him did not impair their title, and gave to the purchaser no right which could be asserted against them. The defendant, having possession of the horse as the bailee of the plaintiff, could not, ordinarily, dispute the plaintiff’s title. But, as there was evidence tending to show he had surrendered the horse to Tits worth, Scott & Co., on demand made by them, and they were the true owners, he is not liable to this action.

6. The third and fourth charges seem to us based on a misconception of the evidence. There was no proposition made by Titsworth, Scott <fc Co. to sell the horse to McNulty, which would become a contract by McNulty’s acceptance in express terms, or by his failure to respond to it within a reasonable time. The letter introduced, and the letter not produced, but the contents of which were shown by secondary evidence, contained no such proposition. They seem to have been written with a view of forcing McNulty to a performance of his duties as agent; and contain avowals of the purposes of the principals, if he did not comply with their request. The letter not produced also shows that they had charged him with the horse, because of his continued neglect to comply with their request. McNulty may have placed himself in the condition of a wrongdoer — of an unfaithful agent, wilfully disregarding the requests and instructions of his principals; but he can not be properly regarded as a purchaser, assenting to a proposition to sell him the horse If these letters were shown to the plaintiff, before his purchase of the horse, he could not have purchased under the belief that McNulty had property in the horse. An agent can not acquire property which the principal has committed to his care, by a wanton defiance of the instructions of the principal, and of his reasonable requests. Nor can it be admitted that one purchasing from him, with knowledge that the only title claimed by the agent is founded on his infidelity, has any standing in a court of justice as a bona fide purchaser. He substitutes himself to the place of the unfaithful agent with whom he deals. It may be, the principals could have elected to proceed against the agent, either in tort, for a conversion of the horse, or in assumpsit, as on an implied promise for the price paid for the horse. But, until they elected the latter action, their right of property remained. Neither the agent, nor those dealing with him, could, for the principals, elect a conversion of his conduct, from the character of tortious, into that of rightful, and a contract.

It is unnecessary to notice the other assignments of error, as it is not probable they will arise on another trial. The judgment is reversed, and the cause remanded.