4 Rawle 223 | Pa. | 1833
The opinion of the court was delivered by
This was an action of indebitatus assumpsit, brought to recover certain advances made by the plaintiffs to the defendant under the following circumstances. The plaintiffs, who reside in the city of Philadelphia, were the factors or consignees of the defendant, who resides in North Carolina, and by orders of the defendant, on the 13th of November, 1822, sold twenty-six bags of cotton, to a certain John Hastings at a credit of four months. The 17th of November the plaintiffs advised the defendant of the sale, and on ihe 31st of Decemb'er transmitted their account to the defendant, debiting him with their advances, and crediting him with the amount of sales. The whole amount was paid to the defendant. The debt due from Hastings was ascertained to be bad, on the 15th of March following, at which time Hastings’s note was protested for non-payment. Although several letters passed between the parties, no claim is made on account of non-payment, nor is there advice given or notice of the fact of protest, for upwards of six months. The defendant alleges that the factors were guilty of negligence in making sale of the cotton; that they were negligent in giving notice of the insolvency of Hastings, and also, in their endeavours to obtain payment after the sale.
It is admitted that the first point was properly left by the court as .a fact for the decision of the jury. But the defendant complains of the charge of the court which in effect was, that the defendant shall repay the money advanced unless the defendant can show that he has suffered damage by the negligence of the plaintiffs. By the charge -of the court, the onus is thrown upon the principal, whereas
These are acknowledged principles of commercial law, for which it is needless to cite authority. So in Malyne, 82, it is said, “ If a factor do sell unto a man certain goods of another man’s account, either by itself, or among other parcels, and this factor giving not advice unto the owner or proprietary of the sale of the said goods, but afterwards (having had more dealing with that man in selling of goods and receiving of moneys) this man becometh insolvent; the factor is to make good that debt for the said goods so sold, because he gave no advice to the owner of the sale of the said goods, at convenient time, even as if he had sold those goods unto a man contrary to the commission given unto the man; for the sale of factorage binds him hereunto.” Further, it has been decided, that after a loss has happened, an agent is bound to give his principal the earliest notice of the insolvency of the underwriters, with whom he has effected policies of insurance on behalf of his principal, in order that the latter may enforce his claim, and take such steps as he may think proper for his own security. A failure to do so makes the agent liable for the whole amount of the insurance. Jameson v. Swainston, 2 Camp. 546, n. In many of their circumstances, the cases are precisely alike, and many of the remarks of Mansitekd, C. J. are strictly applicable here. As in Jameson v. Swainston, we are of the opinion, that after so great a lapse of time, between the time of ascertaining the insolvency of Hastings, and rendering the last account, the factors, as between themselves and the principal, must be presumed either to have received actual payment of the note, or
This case presents a single point. Harvey, who lived in North Carolina, sent cotton, rosin, &c. to Turner Sp Co., and drew on them for the price, or received merchandize. About once a year Harvey came to this city, and a settlement of the previous year took place.
In the autumn of 1822, he sent some cotton to Turner <$p Co., who sold it to J. Hastings at four months, and took his note to J. Harvey, and informed Harvey of this.
Before the note fell due, J. Hastings was unable to pay. Turner tip Co. pressed him much ; obtained a mortgage on his property and his wife’s estate, and then a bond and warrant to confess judgment, and entered judgment in Delaware county, where Hastings lived.
Harvey came to this place in August or September, 1823, and received an account-current from Turner Sp Co., by which he was indebted to them about one thousand dollars. To this, for some time, he made no objection. In it he had no credit for the amount of Hastings’s bond and judgment, which, as well as the previous note, were in the name of J. Harvey. After some time, Turner <§• Co. brought suit. The defence was,' that from their conduct they were liable to J. Harvey for the price of the cotton sold to Hastings.
The judge left it to the jury to ascertain whether, as Hastings was unknown to Turner Sp Co. they made the proper inquiries, and received such answers as to his character and standing, as justified them in selling to him on credit, and the jury found for the plaintiffs on this point. There was an allegation of negligence against the plaintiffs, in not informing Harvey that Hastings’s note was not paid at maturity, and that he was likely to fail; or, in fact, was hopelessly insolvent. And the court told the jury, that if from this neglect of information Harvey supposed the note was paid at maturity, and on that supposition drew for the amount, or thereabouts, distinctly on this supposition, and the plaintiffs accepted the draught, knowing it
The court also told the jury, that it was the duty of tbe plaintiffs to inform Harvey promptly, that the note was not paid at maturity, and was in danger of being lost, and for not giving such information the plaintiffs might be liable. And further, that it was the duty of the plaintiffs to commence suit against Hastings if the note was not paid, and no orders were received from Harvey, and for not doing this, the plaintiffs might be liable; but that if the jury found from the evidence, that Harvey sustained no loss from want of notice, or from no suit being commenced (as a mortgage and judgment were obtained, in less time than they would have been had by adverse suit), that the plaintiffs were not liable. The court put it strongly to the jury, that if Harvey by coming on could have used any means not resorted to by Turner Sy Co., could, from Hastings or his friends, by suit or compromise, have recovered the debt or part of it, in short, if Harvey was in any way damnified, by w'ant of notice, the plaintiffs were liable; but if, from the evidence, every thing was done by Turner fy Co. which could have been done, if Harvey is as well off as he could have been if he had received notice, then he has not been injured by want of notice, and must bear the loss. Here the jury found for the plaintiffs, and the only error assigned is, that the court erred on this last point, and ought to have instructed the jury, that for neglecting to give notice of non-payment of the note, Turner Sy Co. were absolutely bound to make it good to Harvey. Although this was the only point which arose in this cause, in which error is assigned, yet much was said on the other points; and perhaps if on those points the jury had found differently, it would have been as satisfactory to the judge who tried the cause; but as he did not grant a new Ntrial, we cannot legally even take that matter into-consideration. The counsel for the plaintiffs have not cited any authority to show that the judge charged contrary to law. For although an old writer, Malyne, was cited to prove that a factor or agent ought to keep his principal informed of the state of his business, yet neither that author, nor any other cited, or which I have seen, states the broad position, that neglect to write or give information of every occurrence, of itself and without other proof, will make a factor liable in every case, and to any amount. The case cited from 17 Mass. Rep. 183, only proves, that omitting to write, together with other circumstances, may make a factor liable. There, the whole of the circumstances were left to the jury. Paley in his Treatise on Agency, has said, in more than one place, that an agent ought to apprise his principal of the stale of his business, and of any important occurrence; but he also states, that to render an agent responsible for loss or damage, “ it must be a real, and not a supposed or probable injury merely; and therefore an agent is not liable for the neglect of an act, expressly directed, if the act when performed would not have entitled his employer to any legal benefit, but only
It was contended here, however, that by analogy to other cases, the agent ought to be liable; and one of these cases was, that a factor who was ordered to insure, and did not, was liable as insurer. In the first place, the position is too broadly stated. It is only in particular circumstances and situations, that an agent is so liable. French v. Reed et al. 6 Binn. 308. Paley, 18, 20, and following pages. And an agent is not liable at all events, but may use any defence which an insurer could ; for if nothing could have been recovered on the policy, no damage has been sustained by default of the agent. The plaintiff must prove the amount of his interest and the loss, and the defendant may avail himself of a deviation in the voyage, or the illegality of the intended insurance. But what is nearer to the present case, if the agent having difficulty in procuring insurance, employ a broker, who refuses to give up the policy, receives the money from the underwriters, and becomes insolvent, the agent is not liable, if the broker had been of good standing; and the agent was not bound to bring an action for the detention of the policy. Paley, 22.
The counsel also compared this to the case of notice on bills or notes, which must be given in almost all cases, or the person omitting to give it must bear the loss. The answer is, that is a peculiar case, depending on general principles, and more on positive, decisions in some cases, and does not apply even to a surety or guarantor, except one whose name is on mercantile paper. See Gibbs v. Cannon, 9 Serg. & Rawle, 198, and cases there cited.
The very principle of this case, was decided by this court in Hammon et al. v. Cottle, 6 Serg. & Rawle, 290. There the defendant lodged the plaintiffs’ money with P. and informed them of it; and it does not appear he ever after took any other step in the matter. The plaintiffs drew for the money on P. who lived in Paris, where the agent was. The bills were not honoured. Nothing was done by the agent to get the money from P., and yet he was not held liable, because the total insolvency of P. was found to be such, that any attempt to obtain compensation from him would have been fruitless.
The same principle runs through all our cases. The guarantor is not liable unless the money could not be obtained from the principal; but if the principal was totally insolvent, you can recover from the guarantor without having sued the principal, or given notice of his insolvency, Gibbs v. Cannon, 9 Serg. & Rawle, 198; for the omitting to sue or give notice, was no injury to the guarantor.
If the surety in a bond request the obligee to sue the principal, .or
Judgment reversed and a venire facias de novo awarded-