126 Ga. 261 | Ga. | 1906
1. This is a suit in trover. The question is one involving title to certain personal property. The plaintiffs assert title to certain pants, sack-coats, overcoats, and jackets, set forth in their petition, bearing certain numbers as marks of identification. The burden of proof is upon the plaintiffs to establish their title. It appears that Lane was a traveling salesman of the plaintiffs, and that the plaintiffs, reserving title in themselves, had delivered into the possession of Lane, to be used as samples, the identical goods which are described in the petition. There was no direct evidence as to what disposition Lane made of these goods, except that a part of them were returned to the plaintiffs by him.
But it was contended that, though the goods may have been ■originally the property of the plaintiffs, yet the plaintiffs had placed them in the hands of their agent, who, under a prevailing and universal custom of the trade, at the end of the season had •sold them to the defendant, an innocent purchaser, and, for that ■reason, the plaintiffs should not be allowed to recover them. It is stated in Clark & Skyles on the Law of Agency, § 69: “ Proof ■of the custom and usage in a particular business can not be sufficient, without anything more, to show that the relation of principal and agent exists, but such proof may be material, when the fact of agency is otherwise proved, or admitted, to show what "the contract of agency was, and to show the extent of the agent’s .authority. When the rights, duties, and liabilities as between an .■acknowledged agent and his principal are in question, or when the authority of an acknowledged agent to do a particular act or make ■a particular contract is in question, an established custom or usage in the particular business or place may be proved and taken into consideration, either for the purpose of construing the contract of ■agency as between the parties, or for the purpose of determining the extent of the agent’s authority; for, unless expressly excluded, such a custom or usage enters into a contract of agency, as it does into other contracts, and also enters into the authority of the agent as respects persons dealing with him. Of course, as between the parties themselves, and as against persons with notice, the principal may, by his instructions to the agent, exclude customs and '■usages, however well established. But such secret instructions can
3. On the direct examination, a list of goods, which was attached to the plaintiffs’ petition, was exhibited to the witness, and he was asked the question, “whether or not they were the goods bought by him from Lane?” After he was asked this question, further questions were propounded to him on different lines, and finally he was turned over to the opposite side for cross-examination. After the cross-examination, the party introducing the witness again exhibited the same list of goods to the witness, and said: “I will ask you again, Mr. Jacobs, if you will swear that you did not receive those goods?” As will be seen by mere comparison, the two questions are substantially the same. The witness had answered that he did not know whether or not he had bought any of the goods which were described in the petition, and it was not any abuse of discretion for the court to refuse to allow the same question answered again. If additional questions had been asked tending more thoroughly to sift the information of the witness, the court, with some profit, might have allowed them answered; but no additional question was propounded, and we can not assume what other, if any, question was desired to be propounded, and can not reverse the judgment of the court below upon a ruling which was not made. Again, if the defendant had answered that he had bought from Lane the identical goods which were described in the petition, that would not have helped the plaintiffs, because the case really turned against the plaintiffs, not for the want of proper identification of the goods, but on account of the prevailing universal custom already discussed.
4. The manner of examination of witnesses is largely in the discretion of the court, and it is not reversible error for the court to allow counsel, during the examination of a witness, to repeatedly request the court to instruct the witness, nor for the court to so
5. In the bill of exceptions the judgment of the court rendered .against the plaintiffs and their bondsmen for the value of the property replevied by the plaintiffs was excepted to “on the ground that it could not be taken until the matter had been submitted to a jury ••and the worth of the goods proved, and on the further ground that the bondsmen had not been sued, and judgment could not be ■entered against them on a replevin bond without first suing them.'” 'There were no other exceptions to that judgment. These exceptions were not well taken. There was no issue to be presented to a .jury. The bond which the plaintiffs made specified the articles which were taken and the value thereof. The judgment of the •■court was merely upon the uneontradicted state • of facts as presented by the plaintiffs themselves. It was not necessary to institute a separate suit against the bondsmen. See, in this connection, Thomas v. Price, 88 Ga. 533; Waldrop v. Wolff, 114 Ga. 620.
Judgment affirmed.