| Miss. | Apr 15, 1869
delivered the opinion of the court.
This is an action of assumpsit in the First District Circuit Court of Hinds county, founded upon the following receipt or instrument of writing:
“Yazoo County, January 23, 1863.
“ Received of M. J. Futrell, six thousand eight hundred and fifty dollars, to be invested for him in negroes, as my judgment may direct, and to be accounted for by me.
“ E. Richardson.”
There was also a second count in the declaration, for work and labor as overseer, and the money counts.
An account for overseer’s wages before January, 1863, for $4050, also for money collected of Mrs. Robinson in February, 1859, amounting to $2800.
Defendant pleaded “ non assumpsit ” and “ payment,” with
Issues were made and the case submitted to a jury, and verdict rendered for defendant in error for the sum of $5,201.41, and judgment rendered thereon.
Plaintiff in error moved the court for a new trial. The motion was overruled, and exceptions taken to the ruling of the court. All the proof in the case, instructions given and refused, are embraced in the bill of exceptions, and the plaintiff brings the case here by writ of error.
We shall consider and determine the first, second, and third assignments together.
The first is, that the com’t erred in refusing the motion for a new trial.
Second, that the court erred in giving the first, second, third, fourth, fifth, sixth, seventh, and eighth instructions asked for by the plaintiff below.
Third, that the court erred in refusing the instructions asked by defendant below.
The disposition of the points raised by the second and third assignments of error will decide the first assignment of error.
The first instruction objected to it is as follows.: “If the jury believe from the evidence that the defendant was indebted to plaintiff in the sum of $6850 for overseer’s wages and loaned money, in January, 1863, and that no part of same has been paid, except $400, they should find the balance for the plaintiff, with interest from the date of the settlement until the present.”
This instruction would have been correct if there had been no controversy in relation to the indebtedness and kind of indebtedness, whether it was upon the receipt or instrument of writing filed, or upon the open account.
It will be seen from the proof in the case, that the. note of plaintiff in error to Eutrell, due on the first day of January,
This instruction, as given, seems to direct the jury to disregard the receipt for the money, and to find upon the open account filed with the second count in the declaration.
• It directs them to find for the plaintiff below if there was no fa/yment to FufreU/ virtually excluding from the jury all the evidence on the trial, introduced by plaintiff in error to show why there was no payment by Richardson to Futrell of the money mentioned in the receipt of Richardson.
The jury were, under this instruction, to consider the character of the indebtedness the same after Futrell had given' up to Richardson his note due the 1st of January, 1863, as it was before the surrender of this note and the taking of the receipt by Futrell on the 23d of January, 1863, for $6850, by which he undertook to invest the money thex-ein xnentioxied in negroes for Futrell. -
It was calculated to xnislead the jury, and may have done so. In view of the testimony in the case, the giving of this instruction was erroneous.
The next instruction objected to is the second, which is in these words: “If the jury believe from the evidence, that by the statements made between plaintiff axxd defendant in Janxxary, 1863, the defendaxxt agreed to invest the sum, he was'found to be indebted to plaixxtiff in negroes, and that by the terms of that agreement, defendant was to exercise that discretion in good faith, and to exercise cax’e axxd prudence ixi the matter,' and consult the real interest of plaintiff; and if the jury believe fx*om the evidence, that defendant did make a partial purchase of negroes for plaintiff under such agreement, yet,, if defendant managed the matter in so negligent.a manner as that plaintiff
The receipt of Kichardson to Futrell for the money to be invested in negroes for Futrell, creates a case of bailment known as a mandate, which is defined to be “ a contract by which a lawful business is committed to the management of another, and by him undertaken to be performed without reward.” Story on Bailments, ch. 3, § 137, pp. 130 et sequitur. According to the general principles regulating contracts of this kind, “ a mandatary, as the contract is wholly gratuitous, and for the benefit of the mandator, is bound only to slight diligence, and of course is responsible only for gross neglect. This is the doctrine of the common law universally applied to mandates.” Id. ch. 3, § 174, pp. 167-8.
The court below seems to have lost sight of the doctrine of mandatary bailments just adverted to, in suffering this instruction to go to the jury without specifying the kind of negligence the plaintiff in error should be made liable for.
The instruction is too broad. It was in evidence before the jury that the plaintiff in error had made two purchases for the defendant in error. One he had declined to take; the other he was certainly notified of: by his own admission it is proven that he was in possession of all the information that Kichardson had. lie was advised of the parchase soon after it was made, also the reasons why the negroes were not delivered or brought to defendant in error: tins last fact was communicated to him at the time he informed Kichardson to purchase no more negroes.
Then there was also a question of acquiescence to be considered by the jury: certainly Kichardson could not be responsible for the invasions of the Federal armies into the district of country where the negroes purchased of Mrs. Bradford were.
Kichardson could be held responsible, with as much propriety, ■for the loss of these negroes, had he transported them immediately to Mississippi from Alabama to his plantation, where the family of defendant in error was living dining the- war, and though no actual delivery by Kichardson had been made to
' Without any proof of the repudiation of this purchase, the jury were authorized to find against the plaintiff in error, and hold him responsible for his outlay for the negroes purchased from Mrs. Bradford. There was no proof of such negligence in this second purchase warranting such a bi’oad and unqualified direction to the jury to find against the plaintiff in error.
It is in dii’ect conflict with the well-settled doctrine governing this hind of bailment, and it was error to give the instruction without modification.
• The third and fouz-th instructions given and objected by plaintiff in error contain mere abstract principles of law, and should •have been refused, as they are not made applicable to' any supposed state of facts appealing in the case, being therefore irrelevant, and calculated to embarrass or mislead the jury.
The next instruction objected to and given for the defendant in error is the sixth, which is as follows: “ An agent who receives money for investment for another, failing to make the investment, is bound to account for the money; and if the particular funds are going down in the market, and likely to become worthless, the agent is bound to return, or offer to return, the funds to his principal. The agent is bound to use such diligence in that matter as a prudent person would use in his own affairs.”
After the defendant in error instructed plaintiff in error not to invest any more of. his money in negroes, the plaintiff in error was no longer Futrell’s agent to invest the money so held by him; but held it ás a deposité, subject to the order and control of Futrell.
The character of the bailment having been thus changed by the order not to invest, etc., Richardson became a mere depositary of the funds uninvested of Futrell.
Judge Story defines this kind of bailment to be “ a bailment of goods to be kept by the bailee without reward, and delivered accoz’ding to the object or purpose of the original trust.” Story on Bailment, § 41, ch. S, p. 41.
to slight diligence, and therefore not answerable, except for gross neglect.” Ib. ch. 2, § 62. And he must take reasonable care of the deposit.
These rules are well settled in this character of bailments.
The plaintiff in error, after the notice from Futrell in June, 1863, was directed not to make any more investments in slaves, but to keep the money. Eichardson’s testimony about the notice differs from Futrell’s in this, that Eichardson “was to keep it for him until he called for it, or directed him what to do with it.” This statement, in addition to what Futrell said relative to this order, does not affect the responsibility of Eichardson to Futrell. There can be no question as to the legal effect of the order. The fund was certainly as much under the control of Futrell after he gave Eichardson notice not to invest any more of it in negroes, as if he had instructed Eichardson “ to keep it until he called for it, or instructed him what to do with it.” Eichardson’s version of the order.
If the money in the hands of Eichardson, belonging to Futrell, was notes of the Confederate States, or Confederate money, there being testimony in the case that it was Confederate money, Eichardson was not under any obligation to return, or offer to return the funds in his hands to Futrell, because the “ particular funds were going down in the market, and likely to become worthless.”
It is shown by the testimony in the case, that both parties were residents of the State of Mississippi, one of the States constituting the “ so-called Confederacy,” and each party had the same opportunities and facilities to find out the depreciation of the Confederate notes. Eichardson was not bound to use any other diligence than to safely keep the funds in his hands; and if the defendant in error neglected to instruct the plaintiff in error what to do with the funds, he must bear the loss caused
There being no evidence that Richardson gave notice to the defendant in error that the Confederate money was depreciating, or that he offered to return the same, the jury were, under this instruction, bound to find for Futrell, if they believed the funds were Confederate money. It is clear that this instruction is in conflict with these views of the law, and could hardly have failed to mislead the jury in their consideration of the evidence before them, relative to the deposit of the funds in Richardson’s hands. For these reasons we think the instruction should not have been given.
The next instruction excepted to and given for the defendant in error is the seventh, which is in these words: “If the jury believe from the evidence that defendant received from plaintiff $6850 in Confederate money, to be invested for plaintiff in slaves; that the defendant only invested $2500 of the funds; that he kept the remainder of the funds on hand during the war, without investing, unless he was so directed by his principal not to invest, there being an opportunity of doing so; that plaintiff saw that the funds were continually depreciating, and likely to become worthless by the failure of the Confederate cause; and that, during all this time, defendant did not return the funds to plaintiff, or offer to do so — then defendant failed to exercise the diligence and good faith required of him by law, and plaintiff should not be charged by the jury with the amount of money not invested.”
This instruction directs the jury to hold the plaintiff.in error responsible for not doing that which he was prohibited from doing by the notice from Futrell to Richardson in June, 1863. He had no power given him to invest the money, and any investment of the funds by Richardson would have been on his own responsibility, and in violation of the instructions of Futrell. ■ Although Richarson knew the funds in his hands were dépreciating, he was not bound, for the reasons we have stated before, to give the defendant in error notice of such depreciation.
For these reasons the instruction should not have been given.
It is insisted by counsel for plaintiff in error, that the fifth instruction asked for Richardson, and refused, should have been given. It is in these words: “It was not necessary that Richardson should have kept the specific notes belonging to Futrell separate and apart from his own; but it was a compliance with his receipt, if he at all times kept on hand a sufficient sum of the same kind of'money to pay over to plaintiff, or invest-for him.”
There was no special deposite of any particular Confederate notes made by Futrell; the testimony touching this point shows that there was only a general deposite of.the money;.that Richardson at all times had a sufficiency of Confederate notes on hand to pay the amount received, whenever demanded: this was all he could be required to do.
It should have been given by the court, and it was error to refuse it.
We deem it unnecessary to express any opinion on the other grounds insisted upon for a new trial, or upon. the position assumed by counsel for the defendant in error, that “ the verdict is manifestly correct, and sustained by the evidence.” It might prejudice the ease, as a new trial will be awarded. We should not say anything that might have, a tendency to prevent a fair and impartial consideration, by the jury, of the evidence on the next trial.
For the errors before stated, the judgment will be reversed, the verdict set aside, and the cause remanded for a new trial.