14 Ga. 124 | Ga. | 1853
By the Court.
delivering the opinion.
This was a proceeding under the Garnishment Law of this State. On the trial, the attorney of the garnishee objected to the affidavit upon which the garnishment issued, upon two grounds: First, because it was made by the agent of an agent; and, Secondly, because it did not specify against whom process of garnishment was prayed.
Conceding that it was competent for the witness to swear positively, provided he would undertake to do so, to the balance of indebtedness, on account of the dealings between Owsley & & Son, and Mrs. Ruth E. Reid ; yet, when it was disclosed by the cross-examination, that he derived all his knowledge from the data furnished him by Messrs. E. & R. R. Graves, the commission merchants in New York, who sold the cotton of Owsley & Son, it became evident, from that time, that his testimony was illegal; and it should have been withdrawn from the jury. The books of E. & R. R. Graves, properly authenticated, was the source from which this better proof should have been drawn.
We do not deny but that ratification may be implied, even from the silence of the principal. If I ship cotton to my factor at Savannah, and he informs me, that owing to the derangement of the currency there, the want of shipping in port, or any other cause, it will be greatly to my benefit to have the produce forwarded to New York and sold, and I do not object, he might probably infer my consent or acquiescence.
But in the case before us, no such presumption arises. Tho
This, it seems to us, constitutes the equity of this transaction betAveen these parties; especially when it is remembered that Mr. Wellman admits, in his eAÚdence, that he never rendered to the OAVsleys, at any time, an account of the NeAY York sales; and moreoATer, that the Messrs. Graves’ Avere not entitled to look to the Owsleys for any loss on account of this transaction; but on the contrary, that it fell exclusively upon Mrs. Reid.
The Court was requested to charge the jury, that if Mrs. Reid acted as the agent of Owsley k Son, in fonvarding to E. k R. R. Graves the cotton, and aftenyards settled the loss sustained on this shipment, at twenty-five cents in the dollar, that then, she Avas only entitled to receive that amount of her principal. This the Court refused to do; but instead, thereof, instructed the jury, “ That ifE. k R. R. Graves, could only look to the personal credit of Mrs. Reid, or Wellman, as her agent, and not to the garnishees, Owsley k Son, for reimbursement, in that event, it was no concern of Owsley & Son, upon what terms the loss was compromised.”
The charge as asked, should have been given; and the charge as made, is wrong in this: the charge as requested, is upon the
Whether Owsley & Son are entitled to the benefit of the compromise made by Mrs-. Reid with Messrs. E. & R. R. Graves, depends upon the fact, of whether or not they are liable to her for the loss sustained upon their cotton. Mr. Well-man swears, that the reason which influenced the Messrs. Graves to make this advantageous adjustment with Mrs. Reid, was in consideration that she had been a liberal customer of their establishment — her transactions of that year alone, amounting to $370,000. Now, is it not apparent, that if Owsley & Son are to' be held accountable for the loss upon their cotton, which she shipped without authority, that they are entitled to participate in the benefit of the compromise ? Their cotton was an item to swell the very large aggregate of her business, which induced the compromise; and on their cotton, a portion of the loss was suffered, which caused a sum total, of from $14,000 to $16,000. How it is, that their agent, then,. is entitled to the whole benefit of the very liberal release which was made, we cannot comprehend. Discharge them from all responsibility on account of the sale in New York, and they are excluded of. course, from sharing in this compromise.
But the verdict found against th'e Owsleys, is made up en
So that upon any and every view of the evidence, the case should fee remanded for a new trial.