Hall v. Hodge

• Decision Date: 31 December 1847
• Citation: 2 Tex. 323
• Parties: THEODORE D. HALL v. ARCHIE HODGE
• Court: Texas Supreme Court

2 Tex. 323

THEODORE D. HALL

v.ARCHIE HODGE

Supreme Court of Texas.

December Term, 1847.

Appeal from Fort Bend County.

In cases of contract where contradictory evidence has been adduced, and the veracity of the witnesses on both sides stands unimpeached, it is the peculiar province of the jury to weigh the evidence and determine the facts according to the convictions of their own minds. In such cases it cannot, with any propriety, be said that the verdict rendered is contrary to evidence, whether the jury gave the most weight to one or the other side. [ Post, 428, 490; 1 Tex. 326;5 Tex. 492.]

Where there are mutual outstanding open accounts, although the same be not between merchant and merchant, one should be considered as balancing the other; and, if a suit be instituted on such an account, and that of the defendant was not barred before the accrual of that of the plaintiff, the statute of limitations pleaded by the latter in bar of the former will not prevail, and there is nothing in the 2d section of the act of 1840, “allowing discounts and set-offs,” restraining the application of this rule in such cases.

Where the set-off of the defendant exceeds the amount established by the plaintiff, it is error in the court to render judgment for costs in favor of the defendant.

The plaintiff, being appellant in this court, sued the defendant for the recovery of $143.07, due upon an open account for goods and personal property sold to the defendant. The petition was filed on the 26th of November, 1844. The answer of defendant, filed 4th April, 1845, presented pleas of the general issue, payment and set-off, with his account for $311.74 in reconvention. The plaintiff filed a replication of the statute of limitations to defendant's account. There was a verdict and judgment in favor of the defendant for $19.50 and costs. The plaintiff then moved for a new trial on the following grounds, viz.:

“1st. The jury, in giving damages to the defendant instead of the plaintiff, disregarded the evidence.

2d. The verdict is contrary to evidence.

3d. It is excessive.

4th. The court refused to charge the law of the case, and in its charge disregarded the law.” The motion was refused.

The following were the charges asked for, viz.:

“1st. That an agency to contract debts is not to be implied from the relation of overseer and employer, unless it be for necessaries indispensable to the proper management of the business.

2d. That if provisions are furnished by an employer, the right to contract for board by an overseer is repelled. 2d refused.

3d. That if, since the debt sued on was contracted, the defendant presented a claim for only seventy dollars, he is precluded from now claiming more. 3d refused.

4th. That all portions of the account accruing two years prior to the 4th of April, 1845, the date of filing the defendant's answer, are barred by statute.” 4th refused.

The court charged the jury: “That if they believe from the evidence that George was employed by plaintiff to build his mill and superintend the hands he had at the place, the plaintiff is responsible for all debts necessarily contracted to advance the work and for the proper support of the hands. That the plaintiff is not responsible for the debt contracted for feeding the horses of George, unless the jury believe from the evidence they were used, and were necessary, in the business of plaintiff.”

The material facts proven on the trial were as follows: B. M. George proved that in 1842 and 1843 he was in plaintiff's employment as an overseer, and managed in opening for plaintiff a plantation and in building thereon a mill and other houses; that he was also, by special power of attorney, appointed agent to manage certain debts due to plaintiff; that he had no special power to contract debts on plaintiff's responsibility; that his right to do so resulted alone from his relation as overseer and manager; that the articles charged in plaintiff's account were sent by plaintiff to defendant from New Orleans, on defendant's own order, and delivered to defendant by the witness himself; that except the charge for commissions in plaintiff's account the defendant recognized it as just and right; that to assist him in building the dwelling and mill on plaintiff's plantation he employed, on plaintiff's responsibility, Young and Henry as carpenters, and that having no place to sleep in he took board, for Sundays and rainy days and lodging, at defendant's, who lived near plaintiff's plantation; that, except corn for bread, plaintiff had provided all other necessary provisions to subsist the hands; that the bedding used by witness and the carpenters they themselves provided; that their board at defendant's was irregular; that he kept an account of the same, and that for the board of all forty-five dollars would be a sufficient remuneration; that no express contract was made by witness with defendant; that the horses kept by witness at defendant's were his own property, though used for plaintiff; that since plaintiff's account was contracted defendant called on witness for a settlement; that the account of defendant was not so much as plaintiff's by about sixty-five or seventy dollars.

William Young testified that B. M. George, representing himself as plaintiff's agent, employed him to work, and engaged board for him at defendant's, which commenced about the 1st of February and continued until the 15th of April, 1843; that during the same time Henry was employed by George, as agent of plaintiff, and boarded with defendant, etc.

Washington H. Secrest testified that he was acquainted with B. M. George; that he bought pork of witness in the year 1842, as the agent of and for the plaintiff, and for which the plaintiff paid him in 1843; that George was living on Oyster creek and opening a farm for the plaintiff, and was boarding with the defendant; that he was informed by the plaintiff that said George was his agent, and knew that George contracted debts as such agent, and that plaintiff paid some of them.

Campbell, for appellant.

George had no right to contract debts on the responsibility of the plaintiff. He was plaintiff's hired servant, employed in opening and superintending his plantation. As a mere overseer he had no implied right to charge the plaintiff, and as to express right, he says himself he had none. It is clear that no such right resulted from the nature of his connection with the plaintiff. True, Secrest says that plaintiff admitted to him that George was his agent, but for what purpose or to what extent he did not state. Hence, the admission must be referred to the special agency to adjust certain debts, with which George says he was clothed, and in giving to him this special power the plaintiff must be understood as withholding every other power. The maxim is, ““ inclusio unius, exclusio est alterius.” An agent with special powers cannot bind his principal when he transcends his powers, and a person dealing with the agent is bound to know the extent of his authority. 1 Pet. 290;9 Id. 628; see, also, 3 Wend. 83; 2 Saund. Pl. and Ev. 735; Amb. 498; 5 Johns. 58;2 Bay, 505;8 Wend. 494.

The greater portion of defendant's account was barred at the time his answer was filed, and could not be pleaded in set-off. Bull. N. P. 180; Chit. on Con. 234; 17 Johns, 331. At the time the defendant pleaded in...