Manchester Building & Loan Ass'n v. Allee

81 N.J.L. 605 | N.J. | 1911

The opinion of the court was delivered by

Garrison, J.

The refusal of the trial judge to charge the defendants’ eighth request was not error. The request was unsupported by the testimony and unsound in law.

First. There was no evidence that Katz delivered the bond to McKee upon the express condition stated in the request, or that such condition accompanied the delivery of the bond to McKee by Allee through whom such delivery was in fact made. Such a condition as' that stated in the request was testified to, if at all, with respect to the preliminary interviews that took place between Katz and McKee before the bond was prepared, while the conditions to be inserted in it were yet under advisement, and Katz was still insisting upon a condition subsequent similar to that stated in the request. Por obvious legal reasons such testimony afforded no support for the statement of the request as to the condition that was attached by Katz to the delivery of the bond at the time it was given to McKee for delivery to the association. At this juncture, the condition imposed by Katz, -according to his own witnesses, was that the bond should not be delivered if Allee was imprisoned—an intelligible condition precedent to delivery—not if Allee was going to be imprisoned, or “in the event that Allee should be sent to prison,” which is the statement of the request.

That the refusal of a request that is unsupported by the evidence is not error is the established rule of this court. Humphreys v. Woodstown, 19 Vroom 588.

If it should be argued that the condition-stated in the request, although not supported by direct evidence, might be implied, the situation is not changed. The court could not have told the jury that a condition thus implied was an “express condition,” which is what the request called for; and if an implied condition' alone was supported by the evidence, it was useless to charge the jury as to the effect of an express condition of which there was no evidence. Where a request does not fit the case, it is no part of the court’s duty to so modify its language as to render it applicable to the testimony. A request must stand or fall by the language in which it is presented to tiie court unless modified by counsel.

If a modification of such language, however slight, is required in order to entitle the party, as matter of strict right, to have his request charged, it is not error to refuse to charge such request. The reversal of a judgment for the failure of the court to so modify a request that it would be error not to charge it, is a thing yet to be heard of.

Dpon established principles of appellate procedure, therefore, the judgment of the Circuit Court should not have been reversed for its refusal to charge the eighth request of the defendants.

Second. The request was unsound in law.

A charge of the request or of its legal import would have been erroneous. It is not true that “if the condition was imposed upon McKee by Katz, McKee was a special agent.” Special agency can be neither created nor proved by the single-evidential fact stated in the request. Other considerations bearing upon the question of McKee’s agency for Katz, and particularly upon its special character, were directly relevant, and had been testified to with great detail, notably his existing relations to the other actors in the transaction and Ms general agency for Alice, the co-obligor with Katz on the bond and in whose interest it was to be delivered to the plaintiff. It was admittedly, as the general agent of Allee, that McKee first approached Katz and afterwards dealt with him. If, in the course of such dealing, McKee became in fact an agent for Katz, such fact was susceptible of proof, but the mere circumstance that a condition was imposed upon McKee by Katz, ■while evidential upon the question of such agency, was not conclusive proof of it; still less was it conclusive proof that McKee was Katz’s special agent with all that that implied as to the building association which knew McKee in the transaction only as Allee’s attorney and general agent.

The rule of special agency contemplates that third parties shall have by way of notice whatever indicia, normally attend the special, i. a., the exclusive nature of such unique employment. The difference between the authority to perform a particular act in a particular way and the authority to perform all acts connected with a particular employment, which is the essential distinction between a special and a general agency, while fraught with momentous consequences to third parties, affords but slight surface indication by way of notice. The peril incurred in dealing with a special agent should therefore not be made more real by being made more insidious. The sole protection afforded by the rule is that such agent shall be in fact a special agent with all that that implies, as was pointed out by Chief Justice Beasley in Ordinary v. Thatcher, 12 Vroom 403. Hence the emphasis of the rule: “He who deals with a special agent doet so at his peril,” falls on the word “special.” It is the special character of the agency that imparts in law the peculiar force to a secret instruction, not the secret instruction that imparts in law a special character to an existing agency. If this were not so, such an instruction .would, as matter of law, make one my special agent, although he were in fact my general agent, or the agent of my adversary or of one of the actors in a transaction with whom I was dealing at arm’s length. There is no such rule of law.

The question of agency in any form is one of fact, and that of special agency peculiarly so, unless the incapacity of one to become the special agent of another so conclusively appears as to present an insurmountable legal barrier. The submission to the jury, therefore, of Katz’s contention that McKee was his special agent, as a question to be determined from all the relevant testimony, was as favorable to Katz as his ease permitted. To have confined the jury in the determination of this question to the single evidential circumstance mentioned in the defendants’ request would have been in our opinion clearly erroneous.

The judgment of the Circuit Court should not have been reversed for failure to charge this request.

The Supreme Court was also of opinion that the Circuit Court committed error in what the judge said in response to the defendants’ eleventh request. AYe find no error in this respect that entitles the defendant to a reversal. The substance of the request had been,charged, hence its refusal was not error. If the judge in slating his reason ior refusing the request inaccurately rehearsed what he had already charged, the way to take advantage of such inaccuracy was not by an exception to -the refusal to charge, hut by asking for an exception that would bring the precise point to the attention of the judge, which was not done in the present case. The assignment of error as to the refusal to charge is completely answered by the fact that the request was covered by the charge. No assignment of error and no hill of exceptions raised in the Supreme Court any other question arising out of the language in which this request was denied.

We conclude, therefore, that the judgment of the Supreme Court reversing the judgment of the Circuit Court should be reversed, and that the judgment of the Circuit Court should be affirmed.

Fo r affirm an cs—N one.

For reversal—The Chancellor, Chief Justice, Garrison, Swayze, Teenctiard, Parker, Yooriiees, Bogert, Veedbnburgh, Congdon, Sullivan, JJ: 11.