23 Ind. 63 | Ind. | 1864
The appellant, who was the plaintiff, sued the appellee before a justice of the peace upon an account in this form:
*64 Nathan Baker to John W. Vawter, Dr.
3Iay 6, 1861. To sawing 10,311 feet of fencing, at 65 cts...$67 00
Interest................................................................... 4 34
- $71 34
Credits, August 7, $12 90—November 25, $5...................... 17 90
$53 44
The justice gave judgment in favor of the plaintiff for the above sum of $58.44, and the defendant appealed. In the Common Pleas the cause was submitted to a jury, who found for the defendant and the court, having refused a new trial, rendered judgment, etc. The evidence is on the record. Both parties were sworn as witnesses. It was conceded that the plaintiff sawed the lumber as stated and charged in the cause of action; but the defendant, in his testimony, set up that he contracted for the work as agent for John Baker, then living in Louisiana, and that he so informed the plaintiff at the time of making the contract. In this he was directly contradicted by the plaintiff, who testified that he did the work for the defendant under a contract with him on his credit alone. The evidence thus given by the parties was uncorroborated and unimpeached, and was all the evidence given on the question of agency. At the proper time, the plaintiff moved to instruct as follows: “If the jury find from the evidence that Nathan Baker was acting for John Baker as his agent in this transaction, and that said John was at the time a resident of a foreign country, the presumption of law is that the credit was given to the agent exclusively to the exoneration of the principal, and for that purpose the states of this Union are foreign to each other.” This instruction was refused, and the plaintiff excepted. Was this a proper direction to the jury? As a general rule, “agents or factors, acting for merchants resident in a foreign country, are held personally liable for contracts made by them for their employers, notwithstanding they fully disclose at the time the character in which they act. In such cases the ordinary presumption is that credit is given to the agent or
Per Curiam.—Judgment reversed, with cost, etc.