55 S.C. 568 | S.C. | 1899
The opinion of the Court was delivered by
This was an action began on the 15th day of February, 1897. The leading characteristics and principles of law are the same in the case at bar with those involved by the action of Bank of Union v. The Clifton Manufacturing Company, which latter we have just decided, and we might rely upon that decision as authority for sustaining the judgment here; but probably the exceptions being different, it may be as well for us to pass upon them anew, with even the risk of repetition. The history of the case may be thus stated: In December, 1896, James S. Welch, who resided outside the town of Union, near Car-lisle, was approached by Theodore S. Fitzsimons, who' was the agent of the defendant, for the purpose of buying thirty-five bales of cotton he owned. Welch told the agent he must have seven cents per pound for his cotton, and that he would hold it for that figure until February, 1897. To this Fitzsimons replied that he would take it at that figure, payable on 1st February, 1897. AVelch then went to his plantation, had the cotton hauled to Carlisle, weighed, and saw that it was shipped to the defendant. Taking the railroad receipt with him, he went to Union, as Mr. Fitzsimons had requested .him to do, and reached there on Christmas day. Mr. Fitzsimons gave him a check for $1,161.86 on the Merchants and Planters National Bank of Union, S.C., which was in these words and figures: “Union, S. C., February 1, 1897. Merchants and Planters National Bank of Union, S.
“2d. In allowing the same witness to testify as to other cotton bought at Herbert’s and Shelton’s, when such testimony was objectionable for the same reasons as given in exception 1 st.” This exception is overruled for the same reasons given in overruling the first exception.
“4th. In allowing plaintiff to testify that T. W. Traylor and R. W. Harris had sold cotton to Fitzsimons for Clifton Company, and waited for their money, when such testimony was prejudicial to the defendant, related to- matters between other parties, was not relevant to the issues in this case, was not proven to have been known to or ratified by the defendant, and was based in part, if not entirely, on information given the witness by others, and was, therefore, incompetent for the reasons stated, and not admissible under the rules of law regulating the introduction of testimony, as given in
“6th. In allowing the following letters, written by T. S. Fitzsimons to The Clifton Manufacturing Company during the years from 1888 to 1896, to be introduced against the objection of defendant, when such letters were prejudicial to the defendant, and contained many matters that had no relation whatsoever to the issues involved in this cause, and certain matters, which, in addition to being irrelevant and in-, competent, were calculated to influence the jury against defendant. All of said letters being incompetent, under the rules of law which forbid the introduction of any testimony, oral or written, which is not responsive to1 the pleadings and not confined to the points in issue in the cause: (a) Letters introduced and marked ‘A’ 1 to ‘A’ 59, in which overdrafts at Merchants and Planters Bank were mentioned, (b) Letters marked exhibit ‘A’ 5, in which reference is made to agreement as to how much cotton each company buying at Union shall buy. (c) All letters referring to overdrafts at Merchants and Planters Bank, (d) All letters referring to purchases of cotton from Farr & Thompson, (e) All letters referring to purchases through sub-agents and transactions with them.” This is an important link in the history of the defendant’s efforts to' buy cotton in Union through its agent, Theodore S. Fitzsimons, and it is quite apparent that the defendant realizes the light which the letters in question will throw upon this matter. During the more than eight years agency of Fitzsimons for the defendant at Union, it is in evidence that such agent addressed almost daily letters of advice as to his operations for his principal to- Mr. A. H. Twichell, who represented such principal. The claim of defendant in its answer is that its agent was to buy spot cotton for spot cash. These letters show that this agent, in these letters to Mr. Twichell, repeatedly, many, many times, notified his principal that the account at the bank at Union was overdrawn for days at a time for many thousands of dollars; that this agent, in the year 1890, wrote his principal that the president of the
“8th. In holding and ruling that the plaintiff was entitled to introduce any evidence which tended in the least degree to show a general agency; inasmuch as a general agency had been alleged in the complaint, and that the burden of showing that Fitzsimons’ agency was not a general but a limited one, was on the defendant, and when the facts were that no general agency was alleged in thé complaint.”
“9th. In allowing in evidence against the objection of defendant and to its prejudice the books of the Merchants and Planters Bank, in which defendant’s account was kept from 1888 to December 25, 1896, and allowing the witness, Arthur, to testify therefrom as to overdrafts made by Fitzsimons at said bank, when such books related to transactions in which the plaintiff was in no way interested, and of which it was not shown that he had any knowledge; such testimony being, therefore, irrelevant and incompetent, because it was outside of and not responsive to the pleadings, and related to collateral matters. 10th. In allowing in evidence to the prejudice of the defendant the books and the testimony referred to in the preceding exception, especially with reference to-transactions in the fall-of 1896, where it was not only not shown that the overdrafts thus 'proven were known to and ratified by defendant, but on the contrary that no such overdrafts were known to defendant, and that many of them were caused by checks drawn on said account without authority and for illegal purposes, we submit that the ruling as to- that testimony, also violated the rules of law alleged to, have been violated in exception 9th. nth. In allowing the witness, Arthur, to testify against defendant’s objection and to its prejudice as to the transaction between the bank and R. W.
The twelfth exception was abandoned at the hearing. “13th. In allowing the witness, W. D. Arthur, to testify as to various cotton purchases by him for Fitzsimons in fall and winter of 1896, when plaintiff was in no1 way connected
“i8th. In refusing to allow in evidence the statement of the witness, Nicholson, as to drafts paid by Fitzsimons through his bank, when such testimonjr was clearly relevant and competent for the same reasons stated in exception 17th.” For the same reasons given in overruling exception 17, we overrule this exception.
“19th. In refusing to allow the introduction of the testimony referred to- in exceptions 17th and 18th, because it was not first -shown that such transactions were knoyvn to plaintiff, when he had previously ruled that other transactions of Fitzsimons, with which plaintiff had no connection, should be admitted in evidence, and without first requiring that knowledge thereof by defendant should be shown.” This testimony was irrelevant to- the issue; its only tendency was to show that defendant had been unfortunate in its selection of an agent. This neither plaintiff nor defendant denied. The less said of it, possibly, the better. This exception is overruled.
“2ist. In allowing the witness, McCravy, to testify that he had delivered cotton to' the Whitney Mills, on an agreement that it was to be settled for afterwards, the ruling admitting this testimony being erroneous for the reasons stated in exception 20. 22d. In allowing witness, Duncan, h> testify as to certain contracts the Union Warehouse Company had made with its customers as to storing cotton, and allowing one of these written contracts in evidence.” For the same reasons set forth in disposing of the 19th and 20th exceptions, we overrule exceptions 21st and 22d.
“23d. In not holding that all the testimony offered as to transactions between other mills and their customers, and warehouse companies and their customers, referred to in the exceptions immediately pending, had no relation to the issues in this case, and should not be allowed in evidence to influence the minds of the jury, and in not excluding such testimony as incompetent, the ruling admitting this testimony being erroneous for the reasons stated in exception 20th.” We cannot view this testimony as relevant to the issues here being tried; but, as before said, such testimony was perfectly harmless; it could not possibly prejudice the defendant with
“25th. In giving to the jury, in the illustration of one buying stock, an erroneous idea of the distinction between a general and a special or limited agency, to the prejudice of the defendant, in that the jury were informed that the agency alleged and relied on by defendant was a limited one, and the power of a general agent, as general agency was defined, was much broader.” The general charge of the Judge, as we before remarked, was full and clear, adopting in a large measure the views of the defendant in its request to charge, which were all accepted by him. We cannot see that the “Brown & Jones” illustration could have any effect injurious to the defendant, especially in view of what was stated and repeated in the other portions of the charge on the subject of agency. Let the exception be overruled.
“28th. In modifying the plaintiff’s fourth request to1 charge in such a way as to instruct the jury in effect that while, a mere authority to- buy cotton does not include or imply power to buy cotton on a credit, and to' give postdated checks therefor, still if in addition to the mere giving of power to' buy cotton, special instructions are given not to buy except for cash, one dealing with such an agent would not be bound by such special instructions unless they were known to him.” The Circuit Judg'e did not modify the fourth request of plaintiff. This exception is overruled.
“31st. In failing to instruct the jury as to- the law relating to estoppel, when the defense of estoppel was clearly pleaded, and when the Constitution of the State of South Carolina requires that Circuit Judges shall charge the law relating to the issues raised in the pleadings. And particularly when the Circuit Judge, in his preliminary charge to- the jury, expressly stated that in his general charge he would give them the law relating to defense of estoppel.” The appellant fails to show wherein any basis had been laid in the testimony for the application of the doctrine of estoppel. If no such basis was made, the Circuit Judge would have been wasting valuable time to- be discussing abstract questions of law in the presence of the jury. We are obliged to overrule this exception.
“32d. In charging the jury, when they were called back into the jury room in answer to the question of one- of the jurors, that if the defendant accepted any property from his agent in satisfaction of injury caused by an unauthorized act, it would amount to- ratification; especially was this instruction erroneous and prejudicial to- the defendant, in that, in connection with such instruction, the jury were not charged that if the property referred to was accepted upon some loss other than that caused by the particular transaction involved in this issue, it would not, of course, amount to a ratification of the particular act alleged in this action to be unauthorized. Appellant respectfully submits that in view of the fact that other losses were proven to have been caused defendant b}'' their agent, the general terms used by the Circuit Judge were calculated to- lead the jury to believe that if the insurance policy was turned over on account of any loss,
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.