45 Ala. 656 | Ala. | 1871
The charge given by the court, of its own motion, on the trial below, and excepted to by the defendants, was correct. The only negotiation that Singleton had with the firm of Kent, Payne & Co., touching the cotton, took place in January, 1865, at Richmond, Virginia-If there was a sale at all, or any contract entered into between Singleton, a citizen of Illinois, and Kent, Payne & Co., citizens of Virginia, by which any title or interest in the cotton was attempted to' be passed from the one to the other, it was wholly void, and incapable of ratification. No trading between these parties was then allowable, without a permit of the government. And the President’s pass ■was not sufficient for that purpose. — McKee v. United States, 8 Wall. 163, 166; The Ouachita Cotton, 6 Wall. 521, 531; Brown v. Tarkinton, 3 Wall. 377, 381; Kennett v. Chambers, 14 How. 38, 50. Then, the order alone warned all who looked upon it, who knew the domicil of the parties to it, that it could not be evidence of a legal title. And it was not, unconnected with other proof, a power to sell or disposof the cotton.
There was conflict in the testimony before the jury as to the extent and character of the agency of Singleton. There was a wide difference between his statement and that of Kent, with whom he transacted the business about the cotton, as to the purpose and scope of the agency intended to be established. It is not to be presumed that the parties intended to violate the law. But whether they did, or not, and what were the powers intended to be conferred upon the agent, are questions for the jury. This is the effect of the charge. It was pertinent to the testimony, and does not misstate the law. Such a charge is not error.
It does not appear from the record that the charges asked by the defendants on the trial below were “ moved for in writing.” There were eight of these. Those numbered 1, 2, 4, 5, 6, were given, with the verbal remark by the court that they were given “ in connection with the main charge of the court.” Had the charges been in writing, this would have been a violation of the statute. The language of the Code is, that “ charges moved for by either party must be in writing, and must be given or refused in the terms in which they are written.” — Bev. Code, § 2756. The language of the learned judge in the court below means nothing, or it means that the charges moved for shall be, to some extent, controlled by the “main charge” already given. This was a qualification added to the charge moved for. Such qualifications the language of the law will not permit. The proper practice is, for the judge to take the charge and write on it, “given,” or, “re
I now proceed to consider the charges which were asked and refused. These were those numbered three, seven and eight. These charges do not appear to have been asked in writing. They might have been refused for this reason, but as it is not shown in the record that they were so refused, it will be presumed that this objection was waived by the court below, and they were refused because they embodied incorrect expositions of the law. — English v. McNair, 34 Ala. 40.
The third charge asked and refused was in these words:
“ That if they (the jury) believe, from the evidence, that the plaintiffs so transferred the cotton to Singleton and his associates, as to enable them to appear to the world as the owners of it, and that Guy was really deceived thereby and purchased the cotton in good faith, they must find for the defendants.”
There is no proof in the record that Singleton and his associates were “ the owners ” of the cotton, or pretended to be the owners of it. There was evidence tending to
The seventh charge ashed and refused, was as follows,, that is to say :
“ That if the jury believe, from the evidence, that the plaintiffs transferred the cotton to Singleton, without any restrictions over it, and by their contract or the papers entrusted to him, authorized the opinion that they had given Singleton more extensive power over the cotton than was in fact given, and Guy was therefore imposed upon, then the plaintiffs should not be permitted to avail themselves of the imposition.”
This charge, as an abstract announcement of a principle of law, is correct. To have deceived Guy, and under this deception to have induced him to do, to his own injury and the plaintiff’s advantage, what he otherwise would not have done, is a violation of that well settled principle of law which forbids that one shall profit by his own wrong. Nullus commodum capere potest de injuria sua propria. Broom’s Maxims, 317, 320, 322 (marg.)
But does the evidence set out in the bill of exceptions present such a case as entitles the defendants in the court below to invoke the protection of this principle ? There is no evidence that any of the parties to the transaction intended to act in bad faith or fraudulently. The only evidence of title to the cotton possessed by Singleton and his associates, was the order to Browder, and President Lincoln’s pass so far as that was connected with the case. These did not show ownership or a power to sell. This was worth nothing in his favor, unless Kent, Payne & Go. had authorized him to make such declarations. There is no proof that they did. He inferred it from what he understood to be his authority, Guy knew that Singleton could not derive any title to the cotton as owner, or interest in it, by the negotiation in Richmond, because the law forbid this. The contract, for that purpose, was wholly
The eighth charge asked and refused is obnoxious to a like objection. There was no evidence before the jury that the plaintiffs “ entered into any fraudulent arrangement with Singleton,” at any time or anywhere, about the cotton. The charge was, therefore, abstract; it was inapplicable to the proofs. The motion to have it given to the jury was properly denied.
The judgment of the court below is affirmed.