Fleming v. Hill

62 Ga. 751 | Ga. | 1879

Lead Opinion

Bleckley, Justice.

1. There is no doubt that Fleming dealt as an agent, and that he disclosed his principals. He is not sued as guarantor, but as the sole original debtor. The effort is to charge him with the price of goods alleged to have been sold and delivered to him. If the credit was given to him by the choice of the seller, the latter could not afterwards resort to his principals for payment. Code, §2198. On the other hand, the agency being known, if the credit was not expressly given to Fleming he is not personally responsible upon the contract. Ib., §2211. “ The question is, to whom was the credit knowingly given, according to the understanding of both parties?” Story’s Agency, §288. This question is one of fact to be decided by the jury under the circumstances of each case. Code, §2211. I shall not discuss the evidence further than is necessary to show that a verdict for Hill, the plaintiff below, is not sequent to the facts with that indubitable certainty which heals an erroneous charge of the court, or an erroneous omission to charge fully and correctly, upon the law, The transaction generated a deDt against Morgan & Printup, to either Hill or Fleming, for the price of the goods. It generated a debt in favor of Hill, either from Morgan & Printup for the full price, or from Fleming for the price less one-half of the profits. If the relation of debtor and creditor was established between Morgan & Printup and Hill, then Morgan & Printup owed Hill the full price, and he - owed Fleming one-half of the profits, to be retained by the latter out of the price when collected from Morgan & Frintup. If, on the other hand, the relation was not established between this firm and Hill, then, in addition to the firm becoming a debtor and Hill a creditor, Fleming also became both debtor and creditor; debtor to Hill for the price less half of the profits, and creditor to Morgan & Printup for the price in full. In this last case, the goods were in effect sold twice, first by Hill to Fleming at a discount of one-half of the profits, and secondly by Fleming to. Morgan & Printup at full price. Now, according to Hill’s testimony, there was a strong reason for intending that the sale should be directly from Hill to Morgan & Printup, for Fleming had no revenue license, and, therefore, while he might buy from Hill or any one else, he could not sell after he had bought. He represented Morgan' & Printup as perfectly good, and directed that the goods be charged to them on Hill’s books, which was done. He also directed that the goods be shipped, and a bill therefor be sent to Morgan & Printup, and both these things were likewise done. On the books of Hill and in the bill of parcels, Hill appeared to be the creditor of Morgan & Printup, and they, so far as is shown, made no objection to the relation. It is not intimated in the evidence that they ever knew any one else as their creditor in the transaction, or that they had any notice that Fleming, their mere agent, had assumed, or was expected to assume, an antagonistic relation towards them. It was intended that Fleming should collect the bill, and he told Hill that he (Hill) must have nothing to do with Morgan & Printup in collecting it; that he wished to control future orders from them, and would collect it himself. But it is not apparent that the bill spoken of was any other than the one in favor of Hill against them — the one that stood on his books, and the substance of which had been sent as a bill of parcels. If , the collection had taken place, it is difficult to see why the money, except an amount equal to one-half the profits, would not have been Hill’s money. The undertaking to collect seems quite consistent with the assumption of an agency in behalf of Hill; and even if it was attended with a guaranty that the effort to collect should be effectual, this would not convert Fleming into an original debtor in place of Morgan & Printup. I have said enough to show that the evidence was not such as to constrain the verdict which was rendered, and in this view the chief justice concurs. In my individual opinion, the decided weight of the evidence, regarded from a correct legal stand-point, is against the verdict; for it establishes that the relation of debtor and creditor arose between Morgan & Printup and Hill, and still exists. My mind finds it impossible to doubt that Hill could recover against them if he were to sue them on the account; and if he could, he cannot recover against Fleming in this action.

2. The Code says that to render the agent liable, the credit must be expressly given to him ; and Story says that the question is, to whom was the credit given, according to the understanding of both parties? In charging the jury, the court neither used the word “ expressly,” nor any equivalent language, nor did it refer in clear terms to the understanding of both parties. The amplification requested orally by Fleming’s counsel, would have supplied the omission, and ought to have been incorporated into the charge, if not in the words of the request, in some proposition of substantially the like import. The jury may have understood that Hill’s mental state, as he was the person who “ gave credit,” was of more importance than Fleming’s, and may not have felt due concern touching a concurrence of the two wills. The caution suggested by counsel was a proper one, and though suggested orally should have been accepted as a correction of the incomplete phraseology which the court had used. Being offered for this corrective purpose, it was not within the rule requiring a request to be in writing, or at all events, as the court did not require it to be reduced to writing, the benefit of it should not be lost either there or here. The court responded to the request, not by objecting that it was oval, or by saying, I give it or decline to give it in charge, or that it is the law or not the law, nor by adopting it in thought or language and repeating it to the jury, but by the remark to the jury that that was a question of evidence for them. In á note correcting the motion for a new trial, the court explains in the words quoted at the end of the second head-note to this opinion ; but the explanation does not affirm that he gave the request in charge, and his omission to do that after having charged in an incomplete way, is the matter complained of. The propositions which the request embodied are law, and were for th6 court, and the court should have expressly recognized the substance of them, instead of making a mere reference to the evidence. The colloquy with counsel, referred to in the note, is not repeated, and we consequently cannot tell whether that elucidated the court’s meaning, as the court supposes it did, or not. It is certainly not well to depend upon colloquy, where direct and explicit address to the jury is the appropriate method of communication. For my own part, I am unable to ascertain to my own satisfaction, even with the assistance of the note, whether the court meant to treat the request as sound naked law, or merely as meddling with matter of fact and thus encroaching upon the province of the jury.

A majority of this court think there ought to be another trial, and so rule.

Judgment reversed.

Warner, Chief Justice, concurred, but furnished no written opinion.

---

Dissenting Opinion

Jackson, Justice,

dissenting.

The only question is to whom was the credit given, and that question was submitted to the jury by the court, substantially and fairly, I think. The judge must have meant to whom was it given by the contract, and the jury undoubtedly so understood it. The evidence of the plaintiff and the clerk, are that it was given to the defendant, and the defendant’s evidence was the other way; the jury settled that question of fact, and I do not think their finding and its approval by the judge trying the case, should be disturbed by this court under its repeated rulings.