Benson v. Peebles

• Decision Date: 31 May 1838
• Parties: JAMES H. BENSON v. CARY PEEBLES.
• Court: Missouri Supreme Court

5 Mo. 132

JAMES H. BENSON

v.CARY PEEBLES.

Supreme Court of Missouri.

May Term, 1838.

HAYDEN, for Plaintiff in Error, insisted:

1. That the Circuit Court erred in permitting the defendant to introduce or give evidence to the jury of the conversations of plaintiff and defendant, either before, at, or after, the executing of the writing by Peebles, acknowledging the receipt of the money, &c., relative to what the contract of the parties was in relation to the purchasing of the wheat, &c.

2. The second point I rely upon is, that under the pleadings in the cause, all the proof given by the defendant in relation to the sending the money to Alsop by the defendant, and of the depositing it by Alsop with Ferguson, and the loss of it by Ferguson, is irrelevant and inadmissible. If the matter of the proof would sustain the plea of tender, or constitute a good bar to the present action, it was necessary and incumbent on the defendant to have pleaded it specially. See 1 Chitty, 173; 4 Saund. n. 2.

3. I insist that the Circuit Court erred in refusing to give the several instructions prayed by the plaintiff, for the following reasons: 1. The first and second instructions refused, ought to have been given, because there was no plea in the cause under which the tender, or offer to return the money to Benson, could have been given, and therefore it should have been rejected. 2. The third instruction refused, ought to have been given, for the want of a proper plea, presenting all issue authorizing the proof given by the defendant upon that point. 3. The fourth instruction refused, ought to have been given, because the plaintiff gave evidence conducing to show that the defendant did agree to deliver the plaintiff wheat for the money, which was a question to be determined by the jury, and if found for the plaintiff, no defense set up by the defendant could avail him upon the trial of this cause. 4. The fourth point upon which I rely is, that the court erred in giving the several instructions as prayed for by the defendant, as before mentioned. It erred in giving the first one, because there was no evidence in the cause or issue warranting it. It erred in giving the second instruction for defendant, for the reasons given by me in my remarks upon the second point made. The fifth instruction given, ought not to have been given, because there was no evidence given in the cause to warrant it. 5. The court erred in not setting aside the verdict of the jury, and in refusing to grant a new trial, for the reasons mentioned in the motion in that behalf.

KIRTLY, for Defendant in Error, insisted:

1. That the receipt given by Peebles to Benson, for the money in controversy, did not contain their whole agreement. That it was competent for Peebles to prove by parol, that he was limited to, and not to give more than fifty cents per bushel for wheat. There is nothing in the law that required this agreement to be in writing; and the fact proved by parol, does not alter or vary the receipt, or so much of the agreement as it contains, but adds a new stipulation or condition, making up the whole agreement. This violates no principle of law, but is well sustained by the following authorities. 3 Stark. Ev. 1047, 1048-9 (1000, U. S.) Maxwell v. Sharp; Sug, 187; 1 Stark. C. 267, also note; 3 Starkie's Ev. 1049.

2. That it was competent for Peebles to have any part of the $100 bills changed, if the money was in $100 bills, for notes of smaller denomination of equal value, that he might, in good faith, deem necessary, to enable him to perfect and advance the object for which he received it. That the authority given him to invest this money in wheat was general and without restriction, except that he was not to pay more than fifty cents per bushel, unless further instructed. He would have been in no condition, without such exchange, to purchase wheat through the country with facility. And the maxim of the law is, that an authority is to be so construed as to include all necessary or usual means of executing it with effect. See Paley on Agency, 159: 2 H. Bl. 618; Pal. Ag. 170, 137-5; 1 Camb. 43; 4 Bac. Abr. 589; 3 Cain, 226; Story on Bailment, 296; 1 J. J. Marshall, 289, 290; Pirtle's Dig. 257.

3. There was no error in permitting the defendant to read that part of the letter to the jury which he gave them in evidence. It was his duty to notify the plaintiff of his failure to purchase the wheat, and offer to return the money. This was done by letter, through Alsop, defendant's messenger; and the letter was the last evidence of which defendant had been notified to produce. Again, from the time the letter was delivered, he ceased to be a bailee for hire, and became simply a depositary; and consequently, from that time, his responsibility and risk was diminished.

4. The Circuit Court committed no error in refusing the plaintiff's 12th, 13th, and 14th instructions prayed. The tender made by the witness, was not an offer to pay a debt due, but to return the money, furnished for a purpose which had failed. Neither the tender, nor the deposit, coupled with the loss, necessarily formed the subject matter of a special plea. It only changed the character of the bailment, and relieved him from any liability, except from gross neglect, and in this form of action, was proper evidence under the general issue. 1 Chitty's Plead. 472-3; 1 Ld. Ray. 217, 566; 13 Johns. R. 57, 58; 1 Johns. R. 124, &c. 3 Man. R. 111; 6 Mor. R. 285.

5. The deposit with Ferguson was at the risk of Benson, and the loss must fall on him. No act of Peebles had divested Benson of the ownership of the money, or made Peebles his debtor. Peebles had not mingled the money with his own, raised no account with Benson, had appropriated no part of it to his own use; and in the exchange of a part of it for small bills, had, in the exercise of his best discretion, in preparing to purchase wheat through the country, only done what every agent in the country would, and in a large majority of similar cases, always have done; and for which no principal ever thought of giving, or agent of asking, a special authority. Peebles could not then be made to bear this loss, unless he was chargeable with gross neglect. But here he is not chargeable with any, the slightest. He took the same care of the money that he did of his own, and just such as other very careful men took of theirs. Ferguson's house, in which this money was deposited, was robbed, and with it, his own, Peebles', and other persons' money, there deposited, stolen, to a large amount, and Benson must bear that loss, occasioned by his own fault, and not Peebles. See Pal. on Ag. 15, 16, 17; 2 Ld. R. 917; 1 Esp. Cas. 341, n. l.; Co. L. a 88, b.

EDWARDS, J.

This was an action of assumpsit, brought by Benson against Peebles, in the Boone Circuit Court. Peebles pleaded non-assumpsit, and issue was joined. The defendant had verdict and judgment, and the plaintiff moved for a new trial, which motion the court overruled. On the trial, Benson read in evidence the following instrument of writing: “Rec'd of J. H. Benson, four hundred dollars, with which I promise to purchase wheat, receive and forward for him, he paying me six and a fourth cents per bushel, and barrels to barrel, at the rate of thirty-seven and a half cents per barrel. Franklin, Nov. 16th, 1835. C. Peebles.” Benson then introduced one Harrell as a witness, who testified that Benson demanded of Peebles the wheat which he had promised to purchase for Benson with the money mentioned in the above writing; that Peebles refused to deliver Benson any wheat, and gave as a reason, that he had been unable to purchase any at fifty cents per bushel; that Benson then demanded the money mentioned in the writing, and that Peebles refused to return it to him; stating as a reason, that he had deposited it with one Montgomery Ferguson, of Franklin, in December preceding, from whom it had been stolen.

On the cross-examination of this witness, Peebles asked him whether he heard Benson and Peebles, at or about the time of the contract, state what their contract was upon the subject of purchasing the wheat? To the answering of this question Benson objected, and the objection was overruled by the court. The witness then said, that he heard Benson state, at his store in Franklin, that it would be well for him and Peebles to let some person understand the contract between them. Benson said, in the presence of Peebles, that he had let Peebles have four hundred dollars to purchase wheat for him; that Peebles was to give fifty cents per bushel for it, and not more, unless instructed to do so by Benson; and that witness was called upon by Benson to bear testimony to such conversation.

It was then proved, that in the fall of 1835, Peebles came home to Rocheport from Franklin, and brought four hundred dollars, in hundred dollar United States Bank bills; and stated to the witness, who was clerk for Peebles, that he had gotten them from Benson to purchase wheat with. Soon after the money was brought home by Peebles, the witness, who acted as agent for Peebles in endeavoring to purchase the wheat, exchanged one of the one hundred dollar bills, for the purpose of purchasing wheat, for bills of a smaller denomination, but of the same kind of money, and thinks that Peebles exchanged one also. The four hundred dollar bills were put in a box of drawers. The money received in exchange was put in the same place. Peebles kept his own money there, but the witness could not say whether it was mixed with the four hundred dollars or not. Some time after, he saw Peebles go to one Lewis Switzler, the father-in-law of Benson, who resided in Franklin, but was then in Rocheport. The four...