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December 1, 1853


THIS case was brought up by writ of error from the Circuit Court of the United States for the District of Maryland. The facts of the case are set forth in the opinion of the court, to which the reader is referred. It was argued by Mr. Barroll and Mr. May, for the plaintiffs in error, and by Mr. Johnson, for the defendant in error. There was also a brief filed upon that side by Mr. S. T. Wallis. The points on behalf of the plaintiffs in error were the following:

The opinion of the court was delivered by: Mr. Justice Curtis delivered the opinion of the court.

First and fifth exceptions. That the court erred in ruling out the parol testimony offered, of the contents of the invoice sent to the defendant in error by William H. F. Turner from Chatanooga.

Second, third, and sixth exceptions. That the court erred in admitting the testimony to prove the separate contract alleged to have been made by Mr. Yates with H. F. Turner, &c., as set forth in the statement upon page 34 of printed record. Cole v. Hebb, 7 G. & J. 20; Davis v. Calvert, 5 G. & J. 269; Clark v. State, 8 G. & J. 111; Magill v. Kauffman, 4 Serg. & Rawle, 317, 321; Franklin Bank v. Penn. Del. & Md. S. N. Co., 11 G. & J. 28; Gilpins v. Consequa, 1 Peters's C. C. Rep. 87.

Fourth exception. That the court erred in admitting the evidence of usage for commission to be charged on advances on shipments made to London, because the said evidence was irrelevant.

Sixth exception. That the court erred in admitting the evidence of Mr. Teackle, because it was incompetent testimony, and because it was irrelevant.

Seventh exception. That the court erred in rejecting the prayers of the defendants, and in its instructions to the jury, for the following reasons:

1. Because said instructions are vague and uncertain, and therefore calculated to mislead the jury. 2. Because the first instruction is not limited to the interview (or subsequent ones) in which the defendants requested plaintiff's counsel to see Mr. Ward. 3. Because said first instruction embraces the acts and declarations of Mr. Ward, in the interview with Mr. Teackle. 4. Because said first instruction directs the jury that the defendants are bound by the acts and declarations of Mr. Ward, although he was only retained by H. F. Turner as such, unless such limitation of retainer was stated to plaintiff or his counsel. 3 Ph. Ev. 359; 1 Greenl. Ev. § 197, 199. 5. Because the said Purvis and Thomas, two of the defendants, were not bound in law by the acts or declarations of said Ward, if the jury believed the testimony, that said Ward was not their agent or counsel, and did not claim or profess to act as such with their knowledge or consent. (Same authorities.) 6. Because, in order to make the defendants liable for the declarations of said Ward, it ought to have been put to the jury to find that defendants, although present, heard such declarations, or were in a position to be able to hear, if so disposed. Gale v. Spooner and others, 11 Vermont Rep. 152; Edwards v. Williams, 2 How. Miss. 846; Ward v. Hatch, Iredell, 282.

And so far as the second instruction is concerned, that the court erred in giving the same. Because, 1. The said instruction invades the province of the jury, by assuming as facts the making of the draft for $5,733, and also that said draft was drawn as an advance on said bacon. Lewis v. Kramer, et al. 3 Md. Rep. 294. 2. The said instruction calls upon the jury to decide a question of law, in leaving them to find what are liens on said bacon. Plater v. Scott, 6 Gill & Johns. 116. 3. The said instruction requires the jury to deduct from the net proceeds of sales, the draft for $5,733, without requiring them to find the fact that said Harry drew said draft, as agent of William, and had authority so to do, or the facts from which such authority may be inferred. 4. Because there was no evidence from which the jurors had the right to infer that the draft for $5,733 was in fact drawn by Harry as the agent of William, or that said draft was accepted, or paid by the plaintiff to said Harry, as agent of William, the admission of the payment of said draft being that such payment was to Harry, in his individual capacity, and not as agent. 5. Because the principle announced in said instruction, that if the jury find Harry acted as agent of William in the transactions after occurring in relation to the bacon at Chatanooga, then Harry had authority to draw said draft, and William and his property are bound therefor, is in conflict with the principles of law, there being no evidence in the cause from which an authority to Harry, to draw and negotiate drafts as agent of William, can be sustained. The plaintiffs in error will contend, that the agency of Harry was not otherwise than as overseer and adviser for William, in slaughtering hogs and packing the meats, and did not authorize said agent to procure advances, by pledging the meat before or after its shipment, to Messrs. Gray & Son. And that the character of the agency was known to the defendant in error from the beginning. And in ascertaining whether Harry had authority to draw the draft in question, the court are bound to exclude from their consideration all the testimony limited to the proof, that Harry acted as principal, and not as agent, in drawing such draft. Sto. Ag. §§ 87, 251, 390. 6. Because the advance of $5,733, under the circumstances of the case, was a fraud upon the sureties in the bonds, if such advance was made upon William's meat. 7. Because the said instruction does not require the jury to find that the advance of $12,000 was made in pursuance of the bond. 8. Because the court erred in allowing the plaintiff below to contend before the jury, upon two distinct, inconsistent propositions. Winchell v. Latham, 6 Cowen, 689. Beake's Ex. v. Birdsall, 1 Coxe, 14.

Additional objections to the Court's second instruction.

1. Because the court erred in its instruction to the jury, that only half the net proceeds of the bacon was to be credited to the defendants. The plaintiffs in error will contend that the whole net proceeds of the bacon should have been credited to the amount of the advance of $12,000, and the jury instructed to give a verdict for the amount found to be due by William H. F. Turner. They will contend that under the instruction, as given, the jury were bound to find a verdict against the defendants for a greater sum than was owing by William, the excess being to the extent of the other half of the net proceeds not credited.

2. They will also contend that, whether the meat belonged to William or Harry, the $5,733 draft, paid by Mr. Yates, was not a lien on the meat, because the bill of lading was not indorsed. That there can be no lien without an actual or constructive possession of the thing intended to be given in pledge, and that, in the case at bar, Mr. Yates had no such possession. 14 Peters, 445.

3. In the court's instruction the term liens was intended to embrace the item of $5,733, under the fourth exception. The plaintiffs in error will contend that such item was a personal charge against him, to whom the advance was made, and was not a lien on the meat; and the jury should not have been instructed to deduct the same as a lien.

The points on behalf of the defendant in error, were:

1. That the parol evidence referred to in the first exception was properly excluded.

Because notice, at the trial table, to produce the invoice, was insufficient except under the agreement, and the agreement referred only to papers in the actual possession of the parties. The agreement rested obviously on the good faith of the parties and their counsel; and the declaration of the plaintiff below, that the paper was not in his possession, was prim a facie sufficient to establish that fact, and exclude the paper from the effect of the agreement.

Because, even if the notice had been sufficient to justify parol proof of a paper constructively in the possession of the plaintiff below, the invoice in question was not so constructively in his possession, having been forwarded to accompany meat, destined for the Messrs. Gray, and received by them, and being therefore, by legal presumption, in their possession.

It will be further argued, that the plaintiffs in error were not prejudiced by the exclusion of the parol proof, even if it was admissible under the other proof in that stage of the cause, because it afterwards appeared that the invoice had been actually transmitted to the Messrs. Gray, and was still in their possession, which would have made the parol proof incompetent, even if it had been admitted, under the notice to Yates.

It will further be contended that no prejudice resulted to the plaintiffs in error, in any event, from the rejection of the proof, because its whole purpose was to show notice to Yates, that the meat on which he advanced $5,733 was William Turner's, not Harry's, and the court rightly instructed the jury, afterwards, that it made no difference, for the purposes of the case, to which of the Turners the meat in fact belonged.

2. That the plaintiffs in error could under no circumstances be entitled to a credit, on the bond in suit, of the proceeds or any part of the proceeds of the shipments to the Messrs. Gray, unless the meat to shipped belonged to William H. F. Turner; that the proof offered by the defendants in error, and the admission of which forms the matter of the second exception, was offered in connection with other direct proof stated in advance, and afterwards adduced, showing that there was a separate contract with Harry F. Turner for the shipment of meats and receiving advances thereon, which separate contract was known to the plaintiffs in error (Henry F. Turner himself being one of them,) when they signed the bond in suit; that the defendants in error, with this knowledge, and forewarned of the difficulties which might result from the two co existing contracts, insisted neverthless on becoming sureties in the mode proven; that by the very terms of the bond they constituted Harry F. Turner (one of themselves) their agent, as to William H. F. Turner's business, and placed him in the position of deceiving or misleading Yates in regard thereto, and of managing and shipping the meat as his own or his son's–which they were forewarned might happen; that they were thus bound by Harry F. Turner's action in the premises; that the correspondence between Harry F. Turner and Yates furnished the only positive evidence of the capacity in which Turner shipped the meat and asked and received Yates's advance thereupon, and such correspondence was therefore clearly admissible, for that purpose, which was the only purpose for which it was offered, and went directly to the question of the right of the plaintiffs in error to be credited on the bond with any part of the shipments to the Messrs. Gray.

That the letters of Turner, and the Messrs. Gladsden, who shipped for him at Charleston, inclosing the bills of lading, and relating to the shipment of the meat, were part of the res gestae, and bore directly on the points for which the proof was offered.

That the accounts of sales of the bacon, rendered by the Messrs. Gray, had been previously spoken of by Robert Turner, the witness of the plaintiffs in error, and were admissible on that ground, as well as part of the res gestae.

That the letters of Harry F. Turner to Yates, about the meat, and in regard to drawing thereupon, had been spoken of by the same witness, and were admissible, on that score, if on none other.

That the capacity in which Harry F. Turner acted at Chatanooga, had been proven by Wilkins and James S. Turner from said Harry F. Turner's acts, and his letters, accompanying his acts and transactions there, were competent to go to the jury for the same purpose.

3. That the evidence of Mr. Thomas was clearly admissible for the purpose for which it was offered.

4. That the proof in the fourth exception of the custom in Baltimore to charge one per cent. on advances upon shipments to London, and that the plaintiff (below) claimed it, on his advance of $5,733, was admissible, because the advance of $5,733 was properly made, and the plaintiff being entitled to charge for it in account was entitled to the usual commission upon it. The plaintiffs in error themselves, had proven, by the production of Mr. Yates's letter, that such a per centage was chargeable.

5. That the evidence, as to the invoice claimed to be admissible by the fifth exception, was properly rejected, for the reasons previously stated, (No. 1.) and because it was not rebutting evidence, and was inadmissible at that stage of the cause.

6. That the evidence of Mr. Teackle, sought to be excluded by the sixth exception, was not only competent in itself, but was rendered proper by the proof previously introduced by the plaintiffs in ...

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