49 Tenn. 441 | Tenn. | 1871
delivered the opinion of the Court.
In a power of attorney, executed by complainant on the 19th of December, 1860, authorizing the defendant to sign the name of complainant to a certain deed of partition, it is provided, among other things, as follows: “I, the said Jesse Wood, do hereby further authorize the said John L. Cooper to enter into and take possession of the real estate conveyed to me in the above described
The tract of land, the sale of which was thus authorized, contained 63f acres, and adjoined a tract of about 90 acres, owned by W. M. Wood, the brother of complainant; and the defendant was also the agent, or attorney in fact, of W. M. Wood. On the 19th of December, 1861, the defendant sold the two tracts to James A. Jarrett, for $3,800, and executed to him a title bond in the names of complainant and W. M. Wood. He took the note of Jarrett for $486, due 25th of December, 1862, in part payment of the purchase money, and notes on other solvent parties, in different amounts, for the residue; none of the notes falling due .at a later date than the 25th of December, 1862. These debts, or the greater part thereof, were collected by the defendant during the year 1862, partly in notes of the South Carolina and Georgia banks, and, in part, in notes on the Bank of Tennessee, and the Union and Planters5 Banks.
Although the number of acres in. the two tracts was different, the smaller tract of complainant was equal in value to the larger tract, belonging to W. M. Wood, and the defendant, therefore, treated each of the owners as
The complainant was a citizen of Missouri, .where he executed the power; and he filed his bill on the 28th of February, 1866, in the Chancery Court at Shelbyville, against the defendant, to compel him to account for the tract of land at $35 per acre, and also for the rents, and certain profits alleged to have been made by defendant from a conversion of the fund and certain speculations in which he engaged. The bill treats the fund realized, or which should have been realized, from the sale of the land, as belonging to complainant, and assumes that the title of Jarrett, the purchaser, “is perfect and complete.”
It appears that complainant, being dissatisfied with defendant, appointed W. N. Gwinn attorney in fact, in his stead; and that, in the month of January, 1866, shortly before the bill was filed, defendant made two payments to said agent, amounting to $961.75. The defendant denies that he engaged in any speculation, or realized any profit, upon complainant’s funds, and there is no proof to contradict his denial. It is stated in the answer, and shown in evidence, that, after he received the purchase money, the defendant attempted, during the late civil war, to- communicate with complainant, but found it extremely difficult to do so; and being afraid of depredations by the soldiery, he employed unusual and extra
It is in proof that defendant sold the land for a fair price; and there is no evidence to show that he was limited, by his instructions, to sell for not less than $35 per acre. If such evidence were admissible, which may well be doubted, it would require the clearest and most satisfactory proof to countervail the provision in the written power, that the attorney in fact, was to sell for such price or sum of money, or on such terms, as he might think best.” See Story on Agency, § 198, 4th ed.
There is evidence in the record, tending to show that defendant said, in conversation, he had sent part of the money by his brother, to the South, to trade on, and that he complained of his brother for not returning the money received; and it is also shown that the rents, or their proceeds, were paid to, or realized by, complainant, as stated in the answer.
Thomas II. Cold well proves that “up to about the middle of March, 1862, Southern bank notes were about equal to our best banks in Tennessee, and some persons thought they were better; and William S. Jett, Cashier of the Shelbyville Bank, states that, during the year 1862, and in the early part of 1863, the notes of all Southern banks were in good standing and at par, in the payment of debts due the bank, and that within the period stated,
It is also in proof, that current b'ánk notes, as compared with gold and silver, were greatly below par; but as the Court may judicially know, “any matters of public history, affecting the whole people,” and “whatever ought to be generally known within the limits of their jurisdiction,” see 1 Greenl. Ev., §§ 5, G, we attach, in this case, but slight importance to this evidence, for the reason that it is generally, and perhaps, universally known, that during the late civil war, gold and silver disappeared entirely, as a circulating medium, in the Southern States, and became the subject of especial contract in the very few instances in which contracts were made as to that species of currency.
From the evidence in this cause, it is impossible to escape the conclusion that the defendant, as attorney in fact, acted with the utmost fairness- and integrity, and more than ordinary caution; for he was far more successful than the masses of the people, during the late civil war, in shielding his own and complainant’s money from the prying scrutiny and thievish cunning of straggling and undisciplined soldiers, who, in innumerable instances, robbed and plundered, without fear and without punishment, the peaceful, unarmed, unresisting, and, far too often, uncomplaining citizen.
It is now insisted, in argument, that the contract made by the agent was unlawful, and incapable of ratification, because the complainant was a citizen of Missouri, and-the agent and purchaser were citizens of Tennessee at the time when the contract for the sale of the land was made;
As part of the history of the United States, and of the late civil war, -we take judicial notice of the fact that Missouri had representatives in the Provisional Congress of the Confederate States, prior to December, 1861, and was admitted into the Southern Confederacy at the fourth session of the Congress of the Confederate States of America, in December, 1861, and had Senators and Representatives in the Congress of the Confederate States until the close of the war: See McPherson’s Hist. Rebellion, 400, 402.
We also judicially know, as part of the history of the country, that fierce battles were fought in the State of Missouri between the armies of the United States and those of the Confederate States; but we do not judicially know the fluctuating lines of those contending armies, and there is nothing in the pleadings or proof in this cause, to show whether the complainant resided within the lines of the Confederate, or within those of the Federal Army, on the 19th December, 1861, when the defendant executed the title bond to Jarrett. We can not, therefore, assume that
It is stated in the answer of defendant, that “in consequence of the war, all practicable means of communicating with complainant in Missouri, were cut off, so that respondent could neither get a letter to him, or the money, although he tried to communicate with him by letter, and saw no opportunity to send him the money, and was obliged to keep it, and insists complainant is bound to receive it.” In the answer of the complainant to defendant’s cross bill, it is admitted that he received two letters from complainant; one of them dated in 1864, in which he was notified of the sale of the land; but while he denies that said letters contained any information as to the payments made 'in current bank notes, he states that he has so lost, or mislaid, the two letters, that he can not find them. Complainant further states, in said answer, that he was in the army up to July, 1865, but does not state when he entered it, or to what army he belonged.
These vague statements in the pleadings do not raise any question as to the supposed illegality of the contract of sale to Jarrett. Assuming, therefore, that the contract with Jarrett was legal and susceptible of ratification, if it needed any, we hold that complainant has fully ratified said contract, not only by filing this bill to recover from his agent the value of the land or the amount of purchase money in “greenbacks,” but by the reception of part of the purchase money as already stated, after he was fully
It is next insisted for complainant, that the defendant mixed and blended the money he received with his own money or that of others, so that the same can not now be' identified or delivered in specie, and that he is therefore liable; and in support of this proposition the counsel cites Draper v. Joiner, 9 Hum., 612; Peck v. James, 1 Head, 75, and Mason v. Whitthorne, 2 Cold., 242. There can be no doubt, if the doctrine as to “confusion of goods” is applicable in a case like this, that if an agent acting contrary to instructions or the common usage of trade, wilfully so intermixed the property or funds of his principal with his own, as to produce a confusion of goods, he will be responsible; but if he acts in good fkith, and takes the same care of the fund that he does of his own, and the intermixture is not detrimental to the interests of his principal, no personal responsibility attaches to his act. In Draper v. Joiner, a guardian sold a slave, the property of his ward, at a place different
In Crutchfield v. Robins, Tingley & Co., 5 Hum., 17, it was held that a payment of an execution to a Sheriff, in current bank paper, was a payment in money; and we hold that, as the agent was not limited by the power, to gold and silver, or any particular kind of money, and was authorized to sell “on such terms as he might think best,” he had the right to receive current bank notes, which were, at the time he received them, the best currency in circulation, and, as the proof shows, were received at the time by the banks, and treated as “par” in all ordinary transactions.
Let the case be remanded for an account.
On the 21st day of January, the following additional opinion was delivered:
In this case, upon the suggestion of counsel for complainant, we agreed to reconsider so much of the former opinion as declares that the defendant, who did not appeal from the judgment, should be entitled to compensation for his services as agent. The opinion, on this point, was founded upon the cases in which it has been held that an appeal in equity brings up the whole case. See Morris v. Richardson, 11 Hum., 392; Maskall v. Maskall, 3 Sneed, 209, 210; Furber v. Carter, 2 Sneed, 2; Whiteside v. Hickman, 2 Yer., 358; 4 King’s Tenn. Dig., 229, § 11264.
The appeal in Chancery is regulated by the Code, sections 3155, 3159, and the appeal in the nature of a writ of error by 3172. Section 3155 authorizes a reexamination of the whole matter of law and fact appearing in the record. Section 3159 allows any one or more of the parties to appeal, “the judgment remaining in full force against such of the parties as do not appeal.”
In Gilchrist v. Cannon, 1 Cold., 590, it is said that
In Dietz v. Mitchell, January 18, 1871, this doctrine was approved as to debts due to an executor, which the debtor insisted on paying, received in Southern bank notes, when they were the best currency in circulation, and the choice was between them and Confederate notes; and also, as to other debts collected in Southern bank notes, which it did not appear were pressed upon the executor.