Wagener & Co. v. Kirven

56 S.C. 126 | S.C. | 1899

The opinion of the Court was delivered by

Mr. Chief Justice McIver.

This was an action brought by the plaintiffs against the defendant to recover the balance due on an account for goods alleged to have been sold and delivered to the defendant by the plaintiffs. The jury found a verdict for the balance alleged' tO' be due, and from the judgment entered upon such verdict defendant appeals upon the several grounds set out in the record. For a proper understanding of the questions presented 'by this appeal it will be necessary for the Reporter to set out, in 'his report of the case, a copy of the charge of the Circuit Judge, as set out in the “Case,” and also a copy of the grounds of appeal as set out in the record. There were no requests to charge, but the grounds of appeal, after quoting certain portions of the Judge’s charge, proceeds to assign the following errors therein: ist. “Because the charge was not responsive to any issue in the pleadings, or to any testimony in the case.” 2d. Because the Judge, in his charge, “assumed that there was a pretended agency on the part of R. E. L. Kirven.” 3d. Because he misled the jury, by inducing them to believe “that there was something- in the letters written by J. P. Kirven to Wagener & Co., or in the evidence as to the conference in the office of W. F. Dargan, that might justify them in concluding that Mrs. Kirven had ratified the acts of R. E. L. Kirven, and assumed his indebtedness to plaintiffs.” 4th. Because he “impliedly held that a forgery committed without assumption of agency could be ratified without conduct amounting to estoppel in pais.3’ 5th. Because he “impliedly held that a forgery was capable of ratification, when, and if the acts amounted to a ratification, the only ground, and the one in evidence, was the desire to cover up the forgery and protect the criminal.” 6th. Because he “impliedly held that a void ac't was capable of ratification.” 7th. Because he “impliedly held that Mrs. Kirven could be bound by a ratification without consideration.” 8th. Because he “impliedly held that a new promise could be recovered on in a suit on an original and void contract without allegation of the new promise.” The ninth assignment of error need not be stated, as it is manifestly too* general to require any consideration. '

1 We propose to consider these various assignments of error in their order. The first may be regarded as open to thé objection that it is too general; but, waiving that, we will assume that its intent is to charge that there is no' allegation in the pleading and no testimony in the case that would justify the Circuit Judge in charging the jury as to the law of agency. It is quite true that there is no allegation in the complaint o that the goods mentioned in the account sued on were purchased by the defendant through the agency of another; but it never has been supposed, so far as we are informed, that such an allegation is necessary. If the plaintiff can show, in an action for goods sold 'and delivered to the defendant, that the same were obtained by an ag'ent of the defendant, it is entirely competent for him to do so, without any allegation of agency in the complaint, for the obvious reason that the defendant is liable for the acts of his agent, within the scope of the agency, and, therefore, in the eye of the law, goods bought by the agent of the defendant for him are the same as if bought by the defendant in his own proper person. We suppose, however, that the real point of this objection is that there was no testimony that these goods were bought by the agent of the defendant, and for that reason the charge is not responsive to the testimony of the case. It is a mistake, however, to say that there is no* testimony of agency in the case, for R. E. L. Kirven did testify that these goods were bought by him as the agent of the defendant, his mother, and that she actually received and used some of them herself ; and the witness, Sullivan, who was the credit manager of the plaintiffs’ business, shows that these goods were shipped to the various railroad stations as ordered — Os-wego, Floyd’s and Dovesville — marked “M. C. Kirven,” and letters were written and addressed to her, advising 'her of such shipments, and that some if not the most of the packages were branded “F. W. Wagener & Co.,” showing that they were sent by plaintiffs. If it should be said that the 2 testimony of R. E. L. Kirven was entitled to- but little, if any, credit, the answer is, that was a matter exclusively for the jury. The Circuit Judge had no right to determine whether such testimony was creditable,, and his plain duty was to instruct the jury as to the law-under all the testimony adduced in the case, leaving it to the jury to say what testimony they would believe and what they would disbelieve; and this is what he did. It is clear,, therefore, that the first assignment of error cannot be sustained.

3 For a similar reason, the second assignment of error is. without foundation. He did not assume that there was any agency, but left that question, as he should have done, to the jury, under all the evidence adduced in the case.. Even if the fact was undisputed that the plaintiffs had refused to deal with the defendant through the agency of another, and the plaintiffs, at the time, supposed that they were dealing directly with the defendant, and not through an undisclosed agent, that fact would not be conclusive; and if it afterwards appeared, as matter of fact, that the goods sued for were purchased by an agent of the defendant, and not by herself, in her own proper person, she would still be liable to pay for the same.

As to the third assignment of error, we are unable to- discover any foundation whatever in the record before us, for such assignment. There is not a word said in the charge as to the letters written by J. P. Kirven to- Wagener & Co., or as to what occurred in the conference in the office of Mr. Dargan. No allusion was made to any such testimony, or, indeed, to any other testimony in the case. On the contrary, the Circuit Judge seems to have been particularly careful no-t to state anything which, had been testified in the case, as he was required to do by the Constitution, and confined himself entirely to a statement of what would be the law if the jury found, or failed to find, certain facts from the testimony in the case, which was exclusively for them.

4 The fourth, fifth, sixth, seventh and eighth assignments of error may be considered together, as they all relate to matters which were not mentioned, or even alluded to, in the charge. None of these assignments of error can be sustained, as there is nothing whatever in the charge which warrants the implications therein claimed'. If the defendant supposed that it was necessary or beneficial to' her case, that the jury should be instructed as to all or any of the points therein referred to, her plain duty was tO' submit requests to' charge such propositions of •law in reference thereto' as she might be advised were necessary or proper; but this, for good and sufficient reasons, as we must assume, she failed to do, and she cannot now be permitted to attain the same end, by claiming that the Circuit Judge, by mere implication, submitted certain alleged erroneous propositions of law to the jury, especially when we are unable to find in the charge any warrant for such implications.

The judgment of this Court is, that the judgment of the Circuit Court be affirmed.