13 Ga. 508 | Ga. | 1853
By the Court.
delivering the opinion.
This was an action like that of Fielder,' Brothers & Co. against Win. E. Collier, to recover for an over advance on cotton, made by the plaintiffs to Bennett Crawford, deceased, late of Decatur County.
When the judgment was rendered in this case, we understood that Hoyland and Clancy testified as to the books kept by them for Fielder, Brothers & Co. Upon a more careful examination of the record, I am left in doubt upon this point. It is no objection to their depositions that their memories are refreshed by seeing the entries made by themselves. And if their testimony was excluded upon this ground, it was error
But objections to the competency of testimony may be taken at any time, and with or without notice to the adverse party.
As a general rule, factors are certainly bound to obey the instructions of their principal. And if they fail or refuse, and injury is sustained, they are accountable for the loss. For example, J. Day & Co. advance $1774.28 to Bennett Crawford in his lifetime, on 65 bales of cotton, which is shipped to Liverpool, with instructions from the owner to sell before the next crop comes into market. It is sold, after deducting necessary expenses, for $1474.94. Suppose it appear from the proof, that the sale was not in fact made until several months after the new crop was in market; that the price had been depreciated by reason thereof. J. Day & Co. would unquestionably be accountable for the loss. And their claim would be subject to a further deduction to that amount) whatever it is shown to be.
The Court farther charged the Jury, that if the advance was made by plaintiffs to Perry & Dickerson, and on their account, that tho plaintiff could not recover in this action against the estate of Crawford.
Wo view this charge as rather conjectural, for want of proof to warrant it. It is true that there is an entry of this item in the transient account of Perry k Dickerson, dated 14th April, 1845. And it is according to mercantile usage to debit primarily tho advance to the person who actually negotiates the transaction, whether on account of himself, or some third person. But, on the 14th of May, 1845, tho balance, as returned in the account current of Fielder, Brothers & Co. is charged in plaintiff’s books to Bennett Crawford. Tho testimony of Curtis & Dickerson make it manifest, that J. Day & Co. made the advance, and to Bennett Crawford.
The Court farther charged the Jury, that if, in making this advance, plaintiffs acted as the agents of Fielder, Brothers & Co. and paid thoir money, they must find for the defendant.
We look upon this charge also, as hypothetical. There was no evidence to show that Day & Co. acted as tho agent of Fielder, Brothers & Co. in this business, and paid thoir money. There is positive proof to tho contrary.
This charge, like all the rest, was excepted to. Wo are rather inclined to hold, that if a witness is false in one matter, he is to be disbelieved in all, unless corroborated by circum
Judgment reversed.