Denman v. Bloomer

Decision Date31 December 1849
Citation1849 WL 4275,1 Peck 177,11 Ill. 177
PartiesMATTHIAS B. DENMANv.JAMES BLOOMER.
CourtIllinois Supreme Court

11 Ill. 177
1849 WL 4275 (Ill.)
1 Peck (IL) 177

MATTHIAS B. DENMAN
v.
JAMES BLOOMER.

Supreme Court of Illinois.

December Term, 1849.


This was an action of assumpsit, brought by Denman, the plaintiff in error, against Bloomer, defendant in error, to recover money paid by Denman to Bloomer, agent. Plea, non assumpsit. The plaintiff proved that, in July, 1848, a man named Johnson, came down the Mississippi river to Quincy, where Denman lived, with a raft of lumber. That Johnson represented to said Denman that said raft belonged to the defendant, Bloomer; it having been taken by him from a man by the name of Clinton, in payment of a debt due from Clinton to Bloomer; that Denman agreed to buy said raft of Johnson; that a day or two after the terms of said purchase were agreed upon, the raft arrived, Johnson having preceded it to Quincy; that it was landed at a place where the clerk of Denman was not willing to receive it, on account of the inconvenience of taking it from the water; that it was moved two or three blocks lower down the river, to a place designated by Denman's clerk, and landed; that said clerk did not think the raft safely landed, and so expressed himself to Johnson, who then had the raft in charge; that Johnson replied that it was safe, and he would insure it; that the person in charge of the raft left it, and Johnson went to Denman's office, and Denman paid Johnson $300, which Johnson paid to his men. The balance of the money was to be paid when the timber should be taken from the water and measured; the timber was to be removed from the water at Denman's expense. The next morning the raft was gone. At the request of Johnson, one of Denman's men went down the river in search of it, in a small boat, with other men. Johnson went down on a steamboat. Denman's man found the raft at Hannibal; and when Johnson, who had gone as far as Alton, was apprised by

[11 Ill. 178]

telegraph of this fact, he returned to Quincy, settled with Denman, and agreed that he would take said raft under his own charge, and repay said Denman the $300, paid by him to Johnson, and, also, the expense incurred by Denman's man, named Naylor, in securing said raft at Hannibal. Johnson went to Hannibal, took charge of the raft, and took it down the river, and said Naylor returned to Quincy, bringing with him Johnson's draft for $345, drawn on said Bloomer. Johnson had arranged with Denman, at Quincy, that after learning the amount of expenses from Naylor, he would give Naylor a draft on a firm in Hannibal, or on his principal, Bloomer, for all the money paid by Denman; which draft he promised should be paid at maturity. The draft was never paid, nor any of the money advanced by Denman.

The above is the substance of the testimony of Woodruff, who was Denman's clerk. The said Naylor, Denman's agent, testified, in substance, the same matters.

Aaron Denman, the father of plaintiff, testified, that, in August, 1848, being on his way to Galena, he took with him Johnson's draft on Bloomer, for acceptance. Bloomer was unwilling to accept said draft, until he had heard further from said Johnson; but said the draft should be paid, and admitted that Johnson was his agent, and requested one E. N. Turner to write on the face of said draft that he declined accepting it, on the ground that he had not heard from Johnson on the subject, “but acknowledged Mr. James M. Johnson to be his legal and authorized agent.” This was written on the draft by said Turner, at the request of Bloomer, and in his presence. The witness believes that he told Bloomer on what account the draft was drawn by Johnson, in favor of plaintiff, Denman. The plaintiff, also, gave in evidence said draft, with the endorsement above stated on its face. The defendant produced the said Johnson as a witness, who testified that one Clinton was the owner of said draft; that Clinton brought it to Galena, where Bloomer lived; that Clinton was in debt to Bloomer, and it was agreed between Clinton and Bloomer, that the raft should be sent to market at Clinton's expense, and that Johnson, who was Bloomer's clerk should go down the river and make sale of the raft, and, after paying expenses, the proceeds should be paid over to Bloomer on Clinton's debt; the raft was to be sent to market at Clinton's

[11 Ill. 179]

expense and risk, and he was to pay Johnson, and Johnson was to be his agent for the purpose of selling the raft, and Bloomer's agent for the purpose of receiving the money. The witness came down the river in advance of the raft, to Keokuk. When the raft arrived at Keokuk, witness came down to Quincy, and made the sale. He denies that he represented to Denman that Bloomer was the owner of the raft, or that he was Bloomer's agent to sell the raft. His account of the landing of the raft, and the payment of the $300, by Denman, is substantially correct, except that he says he deemed the delivery of the raft complete. He admits that he drew the draft on Bloomer, given in evidence, under the circumstances detailed by the other witness, but says he had no authority to draw the draft, but thought he had been badly used by the plaintiff; was among strangers, in a difficulty, and was determined to extricate himself in the best way he could. The witness took the raft at Hannibal, sold it, and paid the proceeds, after deducting expenses, to Bloomer. Witness was, and had been for several years, the clerk of Bloomer, and his agent in transacting the business of Bloomer, who is a lumber dealer, and received a salary from Bloomer, which continued to run whilst engaged in this expedition down the river, though he was also paid for this trip by Clinton.

In the progress of the trial, the following instructions were given, at the instance of the defendant: 1. The court is asked to instruct the jury, for the defendant, that if they believe from the evidence that the raft of lumber belonged to Clinton, and was intrusted by Clinton to Johnson, to be sold on his, Clinton's account, and to be at the risk and cost of Clinton, until it was sold, that then Bloomer is not liable for any costs or expenses incurred on account of the raft, although the proceeds of the raft when sold were paid over to Bloomer, on a debt due him by Clinton. 2. That if they believe from the evidence that the raft was the property of Clinton, and was to be carried to market at the expense and cost of Clinton, and not at the cost of Bloomer, and that Johnson was acting for Clinton, and at his request, in the sale of the lumber, that then Bloomer would not be responsible for money received or expenses incurred by Johnson, in getting the raft to market. 3. That the fact of Johnson being along with the raft, for the purpose of receiving the money, and paying it over to Bloomer, on Clinton's account, would not

[11 Ill. 180]

authorize Johnson to bind Bloomer for expenses incurred in taking the raft to market, if the jury believe from the evidence that the raft was the property of Clinton, and to be taken to market at Clinton's expense. 4. That the fact of Johnson being the clerk of Bloomer, and engaged in transacting business for him would not authorize Johnson to bind Bloomer for expenses incurred by Clinton, in reference to Clinton's business. 5. That the jury ought not to find a verdict against Bloomer in this case, unless they believe from the evidence, that the raft, on account of which the money was obtained, was the property of Bloomer; or that Johnson had authority from Bloomer to bind him for debts contracted on account of said raft. 6. That if the jury believe from the evidence that Johnson drew a draft in favor of Denman on Bloomer, without authority from Bloomer to do so, that then Bloomer would not be responsible for the amount of said draft, but that Denman would have to look to Johnson for the amount of said draft. 7. That unless the jury believe from the evidence that Bloomer is indebted to Denman, for money lent by Denman to Bloomer, or for money paid by Denman to Bloomer, at Bloomer's request, or for money received by Bloomer for Denman, or for money found to be due from Bloomer to Denman, on a settlement of accounts between them, that then they will find a verdict for the defendant. 8. That even if the jury believe from the evidence that the raft in question belonged to the defendant, Bloomer, and that he sent Johnson down the river with said raft, to sell as his, Bloomer's agent, and pay...

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