10 Conn. 499 | Conn. | 1835
The opinion of the Court was delivered by
Several exceptions are taken to the proceedings in the court below, on the trial of this cause, which are now to be examined. The defendants claim, that the judge at the circuit, omitted to charge the jury, on points made by them, and which were material ; and that the instructions which were given on other points, were erroneous.
1. The jury were informed, that for all the advances made
We should feel constrained to say, (if the decision of the case rested upon it,) that the defendants are not at liberty to insist upon this objection, in this Court, even were it well founded. It has been repeatedly decided, by us, that upon a motion for a new trial, we will not allow points of law to be discussed, which were not made, or which were waived, in the court below. We adhere to these decisions. The rule which they establish, is a salutary one, essential to the preservation of the rights of parties, and to the due administration of justice. We refer to the rule adopted by this Court, in 1826, (6 Conn. Rep. 327.) and to the cases of Lyon v. Summers, 7 Conn. Rep. 399. Russell & al. v. Stocking & al. 8 Conn. Rep. 236. It appears to us, that the argument now addressed to us, is designed to obtain a second trial of a question of fact, rather than the revision of matter of law claimed and relied on by the defendants, at the trial. Throughout the whole motion, the letter of the plaintiff to his agent in England, is treated, by both parties, as a letter of credit. The plaintiff and defendants alike consider and insist upon it as such. Their respective claims were founded on this supposition. The defendants did not call the attention of the judge to this instrument, in any other view than as a letter of credit; nor was he desired to distinguish it from an ordinary letter of credit, because the plaintiff’s house in England and in New- York, was composed of one and the same in
If, however, the objection now taken, was open to examination and revision, we should arrive at the same result, as to the correctness of the charge to the jury, founded upon it. We think, that whether it be considered as a proper letter of credit, or a mere order to afford the facilities which it directs the agent of the plaintiff to furnish, the opinion of the judge is sustained, by well settled principles and adjudicated cases. It was received, by one of the defendants, as a letter of credit; — it was used as such, by him, for the benefit of himself and his co-de
It is, however, claimed, that the prima facie liability of the defendants, as principal debtors, is rebutted, by the direction, in the note of James 6p Caswell to the plaintiff, and in the letter of the plaintiff to his agent, at Birmingham, to forward the invoice of the goods and the bill of lading, to James Cas-well. We do not think this claim is well founded. Neither of these instruments furnishes the slightest evidence, that James Sp Caswell had any interest in these goods. The shipment to them, was not inconsistent with the liability of the defendants as principal debtors. It might, with propriety, have been made to them, as they were the sureties of the defendants for the advances made ; and an additional reason for adopting this course, is inferable from the facts, that James dp Caswell were the agents of the defendants — they resided in New- York, the port at which the goods would arrive ; and the defendants living in the interior of Connecticut, would, from motives of convenience, desire that the goods should be consigned to some person residing at the port of delivery. Hence the peculiar fitness of the language used by James dp Castcell, in their letter to the defendants of August 27, 1832. “ The balance of your goods will probably be here in a day or two, and will claim our attention by way of entry and forwarding.”
The case of Paterson v. Gandassequi, 15 East 62. and that of Addison v. Gandassequi, 4 Taunt. 574. have been cited, by the defendants, as favouring the claim now under consideration. We have examined them, and are unable to discover, that they furnish any support to the defendants’ case : And we refer to them, not so much for the purpose of pointing out the obvious distinctions between both of them, and the» present case, as that it may appear we have not overlooked them» in our deliberations on this subject. In the case first cited, the court recognize a familiar principle, which does not relate to the point in question — which is, that when the credit is in fact given to an agent, with the knowledge that he is in truth but an agent, and acts for a known principal, resort cannot be had to the principal. The rule for a new trial, was made absolute, that the alleged facts, of knowledge by the plaintiffs that the defendant was the principal, and that the plaintiffs had elected to take the agent as their debtor, might, with more certainty,.
2. The defendants asked the court to instruct the jury, that ■as the goods and money furnished to Holmes in England, were afterwards charged on the books of the plaintiff in New-ITork, to James Caswell, and payment requested, in the manner stated in the motion, it furnished conclusive evidence that the credit was not given by the plaintiff to the defendants, as original debtors, and James Caswell as sureties, but to James Sg Caswell alone, as original debtors therefor. This instruction, the court refused to give ; and we think this refusal is justified, by well established principles. Indeed, the counsel for the defendants have not attempted, in this court, to support the claim for such an instruction. It was properly abandoned ; — for it is too clear to admit of argument, that those facts were open to explanation. They might all exist, and yet the circumstances connected with them, be such, as to rebut any inference of the existence of the principal fact designed to be drawn from them. Is is, however, urged, that they made James Caswell, grima facie, the principal debtors to the plaintiff, (if they expressed no dissent) without reference to the question, who were primarily liable ; and that the jury should have been so instructed. It is a sufficient answer to this claim, ¡to say, that no such instruction was asked. “ It surely can be
3, The court below, was further asked to instruct the jury, that upon the facts proved and admitted, as stated in the motion, the law was so. that the plaintiff had thereby constituted James Sp Caswell, his agents, to receive the money due for said advances; and that the remittances made by the defendants to James Sp Caswell, on that account, discharged the defendants from all liability to the plaintiff. This instruction the court omitted to give, but left it to the jury to decide upon the evidence, in case they should find, that the defendants were the original debtors to the plaintiff for said advances, whether the
We do not perceive any error, in refusing to give the instruction which was asked, nor in the instruction which was given. The question to be decided was, whether an agency to receive the money, was created, by the conduct and acts of the parties. This was a mere matter of fact, depending upon all the evidence in the case-and as such, was properly left to the jury_ who alone were authorized to find it. The only principle of law applicable to this part of the case, was this ; that if such agency was created and did exist, the payment to James <)• Caswell, for the advances made to the defendants, would discharge the defendants from all liability to the plaintiff: — and there does not appear to have been any controversy between the parties, as to the correctness of this principle, or of its application, if the facts found by the jury, should justify such application. The facts proved and admitted, did not furnish conclusive evidence, that James <$• Caswell were constituted the agents of the plaintiff, to receive payment for the advances. It was proper that they should be considered, by the jury ; and they were accordingly submitted to them, with the other evidence in the case, with the direction to find a verdict for the defendants, if, in view of the whole testimony, they should be satisfied, that such agency was created, and existed at the time when payment was made, by the defendants, to James Cas-well.
We are sensible, that the result to which we have arrived) will, probably, occasion a considerable loss to the defendants : and we have been told, that, in its operation, it will bear severely upon them. Whether the loss would be more severely felt by the defendants, than by the creditors of the plaintiff, we do not know, and cannot enquire. Courts of justice have no sympathies to indulge towards either party. The insolvency of James Caswell may, (in the language of Mansfield, Ch. J. in Addison v. Gandassequi, 4 Taunt. 581.) “make an unfortunate difference in the case, as to the consequences to the defendants, but it will not alter the liability.” The legal rights of the plaintiff cannot be varied, by the inability of James 4* Caswell to repay the amount received by them of the defendants. We must administer the law as we find it. In
Our opinion is, that the proceedings in the court below, were perfectly correct; and therefore, the motion for a new trial must be denied.
New trial not to be granted.