9 N.C. 145 | N.C. | 1822
Lead Opinion
From the facts stated in this case, particularly those disclosed by the. testimony of Gray Little, I think the Jury were at liberty to find a verdict for the Plaintiffs.
When-, one of the Defendants, wished to borrow money of the witness in Tarborough, rather than draw for it on the house of “, Sweeting & Sterret,” to which the cotton had been cons'gned, in Baltimore, it no doubt was because he considered the money would be more useful to him in Baltimore than it would be in Tarbo-rough. By electing to keep it there, he exercised an act of ownership over it; and by doing so he made it his own, and this he had a right to do, for it was stipulated between the Plaintiffs and the Defendants that the proceeds of the cotton, when sold, should be credited^ the debt due from the Plaintiffs to the Defendants. Amd if at that time the amount of sales had been known, and the Plaintiffs and the Defendants had come to a settlement of their accounts, the Plaintiffs would have had a credit (as they ought to have had) for the amount of those sales; and if the house of “ Sweeting & Sterret” were solvent at that time, but failed afterwards, the Defendants must have borne the loss.
But it does not appear whether the Jui’y, in finding a verdict for the Plaintiffs, took this view of the case — -or
It does not otherwise appear, but that the house of “ Sweeting k Sterret” merited their confidence when the Defendants made a consignment of the cotton to it. That they thought so, is proved from the fact that they made a consignment to it of their own produce, and some of the neighbouring merchants did the same thing. The Plainti^were not ignorant of the fact, that such con-sigument was made of their cotton, for when they applied to the Defendants for intelligence respecting it, they were informed that no account of sales had come to hand. It does not appear that in this the Defendants were incorrect. It seems that the Defendants had made other consignments before that time to the same house — that they had drawn bills upon it which had been accepted and paid — from the spring 1820 until the winter 1820-1821, there was no distrust of the solvency of the house — the first intelligence of it, was also intelligence that diligence
Under this latter view of the case, I think the principle of decision will not steer clear of the circumstance that the property of the Defendants shared the same fate with that of the Plaintiffs j although it will not make it the standard of decision, nor will it altogether overlook the circumstance that others of the same neighborhood with the Defeftdants were sufferers in the same way. These and other circumstances which make up the case, make it necessary to enquire whether the Defendants were guilty either of fraud or gross negligence, and if referring the Jury to that standard in making a decision, they had found a verdict for the Plaintiffs, I should willingly acquiesce, even without the aid of Gray Little’s testimony. There is a material difference between a bailee who acts for a reward; and one who acts gratuitously. In. the case of Shiells v. Blackburne, (1 H. Bl. 158,) it is laid down by the Court, and declared by Ld. Loughborough, that he agrees with Sir Wm. Jones in that respect, that where a bailee undertakes to perform a gratuitous act, from which the bailor alone is to receive benefit, there the bailee is only liable for gn^| negligence, but it is otherwise where the profession of the bailee implies skill, for in that case a want of skill is imputable as gross neglect. — (See also Cow. Rep. 480, to the same effect.) Sir Wm. Jones, in his law of bail-ments, (page 15,) says, that if the bailor only receives benefit, the bailee is only liable for gross neglect.-— Therefore, if the Jury had been instructed that the Defendants were only liable for fraud or gross neglect, whether they had found a verdict for the Plaintiffs on the testimony of Little, or under that charge of the Court ;
Dissenting Opinion
contra. — it is to be collected from the letter of one of the Defendants, read in evidence, that the first proposition made by the Plaintiffs, was, that the Defendants should become purchasers of the cotton ; and that the inducements presented by the Defendants, occasioned the consignment to them, for the purpose of having a sale effected in Baltimore, for the .Plaintiff’s benefit. To say nothing oí the advantage derived to the Defendants from storage at Washington and Tarbovough, and the freight from one place to the other, it cannot be denied, that it was profitable to the Defendants to have their funds in Baltimore, whence they could draw them by a premium on their biils, rather than in Tarborougli: and that they were reluctant to forego this advantage, appears from their having endeavoured to borrow money from the witness Lillie, rather than remove their funds from Baltimore. Up to the time of i,be sale in Baltimore, the interests of both Plaintiffs and Defendants were the same in relation to the cotton 5 11 was important to both parties that a sale should be made, as soon as it could be advanlageously effected. Bui after the sale, the interests of the parties took different directions. The money of Bell & Joiner was deposited where they' most wished it to be, in the hands of the consignees, to serve as a fund on which they could draw as profit presented itself; but the money of the Plaintiffs would have been most usefully employed in being applied to the payment of their debt, and stopping the interest on their bond, .As soon as the, money came into
The excuse alleged for not giving this .notice, is, that the Defendants could get no account of sales from Sweet-ing & Sterret, and could not therefore tell when tiie sale took place, or what amount they should give credit for. But does it appear from any part of the evidence, that a single effort was made to procure these accounts of sales, until the time when Bell attempted to go to Baltimore, at which period Sweeting & Sterritt were in failing circumstances ? It is not credible, that a house in Baltimore, receiving consignments from Tarborough, should suffer a period of six or seven months to elapse, without apprising their consignor that a sale had taken place $ and as to the other produce shipped by the Defendants to the same house, they knew what sale had been effected, and how much they could draw for. But what seems almost conclusive on this point, is the testimony of Sweeting taken by the Defendants, and in his presence. His silence on the two heads of a sale, and transmitting an account of sales, is to me most expressive. If he had proved that either no sale had been effected, until so short a period before the failure, as to render notice unavailing ; or that though a sale was promptly made, his firm had neglected to send an account of sales to Bell & Joiner, although frequently urged to it, it would have acquitted the Defendants of the main strength of the
The law has imposed certain obligations on an agent, which are not founded solely upon the reward paid for fus labour, but in part by the confidence inspired by his acceptance of the charge ; and although it is admitted, that the responsibility of a voluntary or gratuitous agent is much inferior to that of a hired agent, yet it is nevertheless tine, that Use former is bound to bring to the] performance of the duty such a degree of care and diligence as may reasonably satisfy the trust reposed in him. This principle is fully recognized in the great case of Caggs and Bernard ; there was no consideration paid for the carriage of the goods, and no action could have been sustained for not carrying them, but because the Defendant undertook to carry them, and they were spoiled by his neglect, ho was made liable ; and Lord Holt says, if a man acts by commission gratis, and in the executing his commission behaves himself negligently he is answerable, This undertaking obliges the undertaker to a diligent management. And so a bare being trusted with another man’s goods, must be taken to be a sufficient consideration, if the bailee once enter upon the trust, and - i.ake ’.he goods into his possession.
The ease cannot be distinguished in principle from the recent one. of Wilkhmr.i. v. Coverdale, decided in accordance with Coggs v. Bernard. it was there held, that case will lie where a parly undertakes to get a policy done for-another without any consideration, if the party so undertaking takgs any steps for that purpose, but does if, so negligently, that the person has no benefit from it,- — (1 Bsp. C. 75.) in whatever light I can see this case, wheihrr of justice or law, the verdict of the Jury appears lo.be correct, and ought to he supported.