Hovey v. Pitcher

| Mo. | Jan 15, 1850

NAPTON, J.

The principal and most important objection to the judgment in this case arises from the instructions which the court gave on the subject of agency. The defendant introduced proof to show that he made no contract with Pitcher, in relation to the reward offered by the latter for the apprehension and delivery of Harper, and also some evidence to show that, if he made any, it was in the character of an agent for Meredith. The Circuit Court gave two instructions on this subject, one at the instance of plaintiff, and the other asked by the defendant. The latter was correct, the former not.

It does not follow, because a person discloses himself to be an agent, and gives the name of his principal, that he is therefore not personally liable. The person with whom he is dealing may be unwilling to trust the principal, and yet willing to contract with the agent, upon his personal responsibility ; and it then becomes a question of fact, to be determined by the circumstances of the case, whether the credit was given to the agent or not. The conver-sation and acts of the parties, at the time of the contract, must necessarily be evidence, indeed, in the absence of any written agreement, the only evidence of what the contract was. These are the res gestae — the contract itself. The admission of such testimony does not impair, to the slightest extent, that well settled rule that a party cannot make evidence for' himself; that his declarations in his own favor are not admissible. This rule is understood to be confined to declarations and acts ex post facto, if I may be allowed the phrase — made in the absence of the party contracted with and after the transaction has passed away.(^a)

The second instruction given at the plaintiff’s instance is certainly obscure ; but if I understand it aright, it is calculated to mislead. The premises laid down in the first branch of the instruction are followed by a conclusion, which seems to have no bearing upon the case, and so far might be regarded as harmless, but a second sequence is drawn from them in the concluding paragraph, which not only makes the meaning of the entire instructions very obscure, but is in itself erroneous. Had the jury been told that the defendant’s declarations that he was agent, and was authorized to offer a reward, were not sufficient of themselves to authorize a verdict in his favor, no objection could have been made to the proposition. For these facts may have existed, and, yet the plaintiff may not have thought proper to give Meredith credit, and may have preferred contracting with the defendant. There was evidence to warrant this hypothesis and counter evidence which the jury were to determine. But the instruction proceeds to direct the jury that from such declarations alone, unsupported by other evidence, they must not find Hovey an agent. It was immaterial whether Hovey was agent or not; that is,, whether he was an authorized agent or not. The controversy was not between him and his supposed principal, but between him and a third party, claiming to have contracted with him upon his individual responsibility, and the material question was, did the parties so contract or was the contract made with Hovey as the agent of Meredith ? The instruction concludes with a distinct and independent proposition : “and unless the jury believe from other evidence that the said declarations of Hovey that he offered the reward as such agent, they must find for plaintiff.” This last clause was certainly calculated to mislead. Hovey’s declarations to Pitcher or Pitcher’s agent, Heard, were undoubtedly evidence of the understanding between them, as well as what was said by Pitcher or Heard. To enable the jury to ascertain the intent of both parties, it was proper for them to know all that passed between them at the time of the supposed contract. Declarations made by Hovey at other times and to other persons would of course bo inadmissible.

A good deal was said in the argument of this case in relation to the first instruction given by the court for the plaintiff. The defendant insists that his liability under the contract with plaintiff, admitting its existence and that he made it on his own responsiblity, depended upon the payment of a reward for the apprehension and delivery of Harper, to the jail of Jackson county, and inasmuch as the plaintiff thought proper to receive Harper, from those who apprehended him, at Springfield in Greene county, and to pay them four hundred dollars for their services up to that point, the contingency upon which his liability depended had not occurred. We cannot regard this objection as well founded. In the construction of agreements, courts must look to the objects which the parties have in view, and a substantial compliance with the obligations assumed, is all that is required. The manifest and sole object of the defendant, in requesting the plaintiff to increase his proposed reward was to secure the person of Harper. That object was attained, Harper was apprehended, and delivered at Independence, the county-seat of Jackson. If the complainant saw fit to receive Harper at Springfield, and thereby diminished by one hundred dollars, the amount of his liability, he might be regarded as assuming the risk of his delivery to the jail of Jackson upon himself. In this view of the contract, the plaintiff would be entitled to the entire sum which the defendant promised to pay upon that event, and the defendant would not have been responsible for any portion of it, had Harper made his escape from the custody of the plaintiff, or the sheriff. The construction, however, given by the court was more favorable to the defendant, holding him liable only for his proportional part of the reward. This was all the plaintiff asked, and to this he was entitled, if the contract was made as charged and as the instruction given hypothetically assumes. These facts are for the jury, and we shall remand the case for the purpose of having them again submitted upon proper instructions.

The objection to the declaration may be remedied by amendment, and this renders useless any consideration of the question presented by the motion in arrest and the motion to strike out the special counts. Judgment reversed and cause remanded.

a (a) But see Wahrendorf v. Whitaker, 7 Mo. R. 205; Tate v. Evans, 7 Mo. R. 419; Ruggles v. Washington Co., 3 Mo. R. 496; Little v. Stettheimer, post, 572; Little v. Sell, post, 577. One who places another in a position in relation to his property, calculated to deceive those dealing with him m relation thereto, is hound by the acts of the agent — Debaun v. Atchinson, 14 Mo. R. 543; Higgins v. Dellinger, 22 Mo. R. 307. When a wife, who in the absence of her husband usually acts as his agent, borrows money and purchases property with it which he afterwards possesses and claims, he will be bound to pay the money — Burk v. Howard, post, 241. When a person assumes to contract as agent, he must see to it, that he binds his principal by the contract, and if the contract does not give a right ol' action against the principal, the agent himself will be held personally liable to the full extent of the contract, and the damages, if any, resulting therefrom — Lapsley v. McKinstry, 38 Mo. R. 245. 'And see, as to the deception of the principal or his factor — Yeatman v. Corder, 38 Mo. R. 327.

b (b) See note to Powers v. Talbot, 4 Mo. R. 285.