56 Tenn. 137 | Tenn. | 1872
delivered the opinion of the Court.
Tbe plaintiffs were commission merchants and cotton factors in the city of Memphis in 1865, and brought this action to recover of defendant an account of certain monies advanced to him, and for charges upon three bales of cotton consigned to them by defendant on the 31st January of that year, which were sold in the city of New York on the 3rd of May thereafter for a less sum than the amount originally advanced by the plaintiffs. The action was brought to recover the difference between the sum advanced by the plaintiffs and that for which the cotton was actually sold.
The plaintiffs had a verdict and judgment below for $398.80, from which the defendant has appealed in error. The defense relied upon is, that the loss
The contract and agreement between the parties was, that the cotton was to be shipped at once to Cincinnati, and to be sold “upon arrival.” The instructions given by the defendant to the plaintiffs touching said shipment and sale were peremptory, and, left to the latter no sort of discretion. Upon this point the proof is clear and without conflict. The plaintiffs executed and delivered to the defendant a receipt for the cotton in words and figures as follows:
“Received of J. W. Strong three bales of cotton,, which we have shipped to Cincinnati for him.
“ January 31st, 1865. W. L. Stewart & Bro.”
Up to this time there is no proof whatever that the plaintiffs have ever given their agents at Cincinnati any instructions as to the sale of the cotton:
CINCINNATI, March 9, 1865.
Messes. W. L. Stewart & Bro. — Bear Sirs: We bave received your letter of the 1st inst. directing us to sell your cotton. This shall be done' as soon as possible, but there is scarcely any demand for it at present. Last sales 70 to 71. Very truly,
R. Buchanan & Son.
It would seem, in the absence of all proof upon tbe subject, and from the fact that this letter .makes no reference to any previous instructions, that the instructions in the plaintiffs’ letter of the first of March were the first ever given to their agents to sell the defendant’s cotton. But the deposition of the elder Buchanan is taken in the cause, which seems to leave no doubt upon the subject. He is not interrogated upon that point, but is silent upon it. He is examined, however, upon the state of the cotton market in Cincinnati, and in the course of his examination he says:
“I sold no cotton in February or March, 1865. What I held was limited by the owner at above the market price.”
We take it from the proof, therefore, as an inference not only legitimate, but irresistable, that the agents of the plaintiffs had possession of the defendant’s cotton for more than one month without the instructions so peremptorily imposed by the defendant upon tlm
"We think this paper was irrelevant, and calculated to mislead the jury, and that the same was improperly admitted in evidence. It is a mere basis of a
It was utterly irrelevant to the issues to be tried and should have been excluded from the jury upon objection. The law favors the compromise of matters in litigations. It is against the policy of the law that parties should be prejudiced by their “bids for peace,” or overtures, or agreements, made with a view to stop litigation. These overtures of pacification are protected in the law as confidential and privileged matter, which are to be encouraged and promoted. “Without this protection rule,” it is said, “it would often be difficult to take any step toward an amicable compromise or adjustment.” 1 Greenl. Ev., Sec. 192. It must be permitted to men, said Lord Mansfield, to buy their peace without prejudice to them; if the offer should not succeed; and such offers are made to stop litigation without regard to the question whether any thing is due or not. If, therefore, the defendant being sued for £100, should offer the plain
The defendant requested the court to charge the' jury that they might look to the proof to determine' whether or not R. Buchanan & Son were the agents of plaintiffs, that if they found that they were theagents of plaintiffs, and not of defendant, the plaintiffs would be liable to defendant for the failure of R. Buchanan & Son to carry out the instructions given by defendant to plaintiffs in regard to the sale of the cotton.
To this request the Judge responded that he had already charged sufficiently upon that point. The defendant thereupon requested the court to charge that if the jury found from the proof that defendant gave plaintiffs positive instructions to send the cotton to Cincinnati and sell it at that place on arrival, and they further found that the cotton was sent -to New York from i Cincinnati, that the defendant would not be chargeable with the expense of shipping the cotton from Cincinnati to New York, or with the charges and commissions of the factor selling it there. The court declined to give these instructions to the jury.
We are of opinion also that the court erred in withholding the instructions asked for by the defendant. It was certainly a question to be gathered from the proof whether the plaintiffs were the mere agents of defendant for shipment/ or his agents for shipment and sale also, and this was a matter easily ascertained from the contract between the parties. And it would be a harsh doctrine which, it seems to us, would be subversive of the fundamental principles upon which the law of agency rests, that would authorize an agent to recover of a principal losses and charges which accrued to the agent on account of a positive abuse and violation of the duties and obligations of his agency, lit is manifest that the charge proceeds upon the idea
Here we have not only a failure to carry out the specific trust imposed, but an unauthorized breach of the trust, and a departure from its sanctions, which nothing less than an unlimited discretion could justify. It is certainly true that an agent employed to do a particular service may resort to the usual and necessary means to make his agency effective. 1 Sneed, 497. A factor may thus appoint another to sell merchandize consigned to him for sale, and such being the usage of trade, a privity is created between the latter and the principal to the precise extent and scope of authority vested in the first factor, but no further. That privity is destroyed by any unauthorized perversion or abuse of the original authority; and where the privity does not exist, the second factor would be responsible to his own- employer, and the
The cases of Dunlap v. Stewart & Bro., Wright v. Stewart & Bro., and Futhery v. Stewart & Bro., involving the same questions, are governed by principles of this opinion.
Let the judgments in each of those cases which have been heard and considered with this, be also reversed, and new trials awarded.