Van Vacter v. Brewster, Solomon & Co.

9 Miss. 400 | Miss. | 1843

Mr. Justice Clayton

delivered the opinion of the court.

This was an action of assumpsit, brought by the defendants in error, upon an order for the payment of a certain sum of money, out of funds of the drawers, Enloe, Johnson & Co., when collected; the payees first returning to the drawee, the note of Enloe, Johnson & Co., payable to Brewster, Solomon & Co. There was a general acceptance of the order or bill of exchange (as it is called in the declaration) by Yan Yacter. Upon the trial there was proof that the acceptor had collected a sufficiency of funds to pay the order; at least there was proof from which the jury inferred the fact. The defendant below, attempted to prove that he had made the collections in Mississippi and Alabama Railroad Bank notes, and there was probably sufficient circumstantial evidence for the jury to have inferred that fact, if they had thought proper to do so.

Upon the trial various instructions were asked from the court on both sides, all of which were given but one; and to the refusal to give that one, no bill of exceptions was filed. The jury found a verdict for the plaintiff, but for less than the amount of the¡ order sued on, from which it may be inferred that they scaled down the amount, in consequence of the depreciation to which it was proven that that sort of money had been subjected.

A motion was made for a new trial, which was overruled, and the evidence spread out in a bill of exceptions, and the cause brought by writ of error to this court.

'The principal ground relied on to reverse the judgment, is that the jury found a verdict contrary to the third charge of the judge, given at the request of the defendant. That charge is in these words : “ That if they believe from the evidence, that defendant collected Mississippi and Alabama Railroad money, and upon demand he offered to pay such money, in the absence of proof of instructions to collect particular funds, they must find for the defendant.”

It was in proof that the defendant had offered to pay in that kind of funds.

Upon this point the argument is that “ the question for the consideration of the court is not whether the instructions given on the trial of the cause were correct, and founded on a just view of the law, but whether the finding of the jury was in accordance with the instructionsas as given, and not excepted to?” We do not think that this is a just and proper view of the subject. If the jury found in accordance with the law and evidence, though opposed to the charge of the court, and the court after-wards enters up judgment on verdict, and refuses to grant a new trial, that is evidence that the court is satisfied with the finding. Suppose we consider the instructions to be wrong, must we reverse the cause, and sé'nd it back with directions to the court to give a different charge on another trial? That would be to do a vain and useless thing, because, in such a state of things, the jury would already have done what we supposed they ought to do. It would moreover force us to decide, not according to our own opinions of the law, but according to the supposed conformity of the verdict of the jury to the charge of the court below.

This makes it necessary for us to pass upon the correctness of the charge. Whatever might be the rule, as between attorney • and client, or principal and agent, as to which we wish to give no intimation of opinion, we do not think it has been rightly expounded in this instance, where no such relation exists. Mr. Yan Yacter was not the counsel of Brewster, Solomon & Co.; he was not collecting for them; but he engaged, by his acceptance, to pay a certain sum to them out of his collections, for Enloe, Johnson & Co. They had no control over him; they had a money demand upon him, on the occurrence of a particular contingency; and they have a right to have that demand satisfied in the lawful currency of the country.

Upon the whole case we think the judgment should be affirmed, and we so order.