73 Ga. 418 | Ga. | 1884
Comer & Company brought their action against Hatcher
Upon the trial of the case, defendants introduced a letter in evidence from themselves to the plaintiffs, dated 17th October, 1878, in which they stated that they had shipped to plaintiffs forty-five bales of cotton, and instructed plaintiffs to sample and put the cotton on the market, and with the proceeds to pay their note. They also showed from pi aintiffs’ books that the cotton was sold and realized some thirteen hundred dollars, which was placed as a credit on the account of defendants, which account consisted of several items besides the note sued on. Defendants introduced evidence to show that if the cotton had been sold according to instructions contained in their letter, it would have realized eighteen hundred dollars, more than sufficient to have paid their note and the account.
Plaintiffs in error insist here that, under these facts, the note is paid off, and the damage which they sustained by reason of the failure of the defendants in error to obey their instructions was more than sufficient to extinguish the account, and that this should be allowed them by way of recoupment.
The defendants in error contend that, by the custom of merchants which obtains in Savannah, as they had advanced plaintiffs in error on the cotton, they were not bound to obey the instructions of the plaintiffs in error, but might hold this cotton and sell in their discretion.
“ Peculiar confidence being reposed in a factor, he may, in the absence of instructions, exercise his discretion, according to the general usages of the trade.” Code, §2111. “ The primary obligation of an agent or factor, whose authority is limited by instructions, is to adhere faithfully to those instructions, for if he unnecessarily exceed his commission, or risk his principal’s effects without authority, he renders himself responsible for the consequences of his
Whatever damage the plaintiffs in error may have sustained by the failure of the defendants in error to sell the cotton as instructed, they had the right to recoup against the claim of defendants in error; and the court errel in refusing the request of plaintiffs in error on this point.
If it be true, as contended for by the plaintiffs in error, that they shipped to defendants in error forty-five bales of cotton, with directions to sell the cotton and pay the note sued on, and if defendants in error did sell the cotton, and it brought enough money to pay off the note, then this was an extinguishment of this debt, and the defendants in error could not recover upon it. The court should have so instructed the jury, and it was error to have refused the instruction. Code, §2869. Pritchard vs. Comer, 71 Ga., 18; 51 Ga., 507; 57 Id., 450; 34 Id., 558; 27 Id., 47; 30 Id., 857; 45 Id., 565.
The principles here announced will, we think, be sufficient to control this case upon another trial.
Judgment reversed.