McLean v. Rutherford

• Decision Date: 31 July 1843
• Citation: 8 Mo. 109
• Parties: MCLEAN v. RUTHERFORD.
• Court: Missouri Supreme Court

8 Mo. 109

MCLEAN

v.RUTHERFORD.

Supreme Court of Missouri.

July Term, 1843.

APPEAL FROM RANDOLPH CIRCUIT COURT.

DAVIS, for Appellant. 1. That the evidence of Granville Wilcoxson ought to have been excluded from the jury. 2. That a new trial ought to have been granted. 3. That the instructions of the court, asked by the plaintiff, ought not to have been given. 4. That upon the facts proved, the plaintiff had no right to a recovery. 3 Mo. R. 317. As to the powers of the agent, see 6 Johns. R. 69, Van Allen and another v. Vanderpool et al.; 6 Cowen, 186, Corlies v. Cumming.

CLARK, for Appellee. 1. That the defendant was the agent or bailee of the plaintiff, and as such was bound for at least ordinary diligence; and that, from the evidence in this cause, the jury were authorized to find that he had not used ordinary prudence in the sale and disposition of the plaintiff's property; and that, by his negligence, the sale and proceeds of said horses were lost. 8 Story on Bail. 296-7; 4 Bibb, 282; 2 Bibb, 399. 2. That, notwithstanding the defendant may have used the same care and diligence in the sale and management of the plaintiff's horses, that he did with his own, he is liable, unless that was such as a prudent man would use. Story on Bail. 15, 16, 46, 7. 3. That the evidence shows sufficiently clear that the plaintiff called upon the defendant to account before suit was brought. 4. The instructions for the plaintiff were well given, and are sustained by the evidence in the cause, and by law. 5. But if this court should consider that the defendant in this case was bound to use slight diligence only; still the judgment ought to be affirmed as the case, from the whole of the instructions given, was presented to the jury upon that principle. Story, 46-7; Chitty on Contracts, 144.

TOMPKINS, J.

Shelton Rutherford brought his action in the Circuit Court of Randolph county, against Charles McLean, and having obtained a judgment against him, McLean prosecutes this appeal. It appeared in evidence, that in December of the year 1838, the defendant, Charles McLean, was about to leave his place of residence in Randolph county, with a drove of mules and horses for the southern market. A witness of the plaintiff stated, that, on the morning when the defendant started, he assisted the plaintiff, a neighbor of the defendant, in driving to the defendant's place of residence, seven horses, which the defendant received into his drove. The witness said, he knew nothing about the terms on which the defendant received the horses from the plaintiff; that he heard the plaintiff say to the defendant, at the same time, that he wanted him to sell the horses for some price, that he wanted money and must have it, and did not wish him to return the horses. This witness believed the horses to be of “various values, ranging from sixty to eighty dollars. Another witness of Rutherford, the appellee, stated, that some time after the return of the defendant from the South, he started, in company with the plaintiff, to the house of the defendant, and that before they arrived there, they found the defendant at the house of a neighbor. The witness left them together, and pursued his own business. On his return he found the plaintiff and defendant at the house of the defendant, and there, he stated that he heard a conversation between them, something about the horses taken away by the defendant for the plaintiff, but he did not recollect the particulars. The plaintiff then asked the witness to state whether he knew, from the plaintiff's statements, before they went to the house of the defendant. what was the business of the plaintiff at the defendant's house.

The counsel of the defendant objected to this question, and excepted to the opinion of the court overruling the objection. The answer of the witness not being satisfactory, the plaintiff asked him, if he had not at the same time told him that he was going to try to settle with the defendant. This was also objected to by the defendant, but the court allowed the question to be put, and the defendant excepted. To the last question put and excepted to as aforesaid, the witness answered, that while they were on their way to the defendant's house, the plaintiff stated that he wished to have a settlement with the defendant, and that the defendant was not present. The plaintiff then asked the witness what he inferred, from what the plaintiff said whilst they were going to the defendant's house, was the business of the plaintiff there. The question being objected to, the court permitted it to be answered, and the witness stated, that his inference was, that the plaintiff desired to have a settlement with the defendant, but he denied that he had heard the plaintiff request any settlement with the defendant, but said, he had heard the plaintiff make the statement when they were going to the house of the defendant; the witness stated that he did not hear the plaintiff make any express demand of a settlement with the defendant about the matter, nor did he hear the plaintiff make any express demand of the horses, but heard conversation in relation to the defendant's expedition to the South, and to some unsettled matter between them in relation to the trade to the South.

The defendant then introduced his witnesses, one of whom stated, that he sent three mules with the defendant, to be sold at the same time with the plaintiff's: and that, when the defendant was about to leave home with his drove, he heard the plaintiff, in a conversation with himself and one Smith, now dead, as to the terms on which the defendant was taking stock for others, say, that he had delivered his horses to the defendant to do with and dispose of as he would do with his own; and that the plaintiff further remarked, in the same conversation, that whatever the defendant did, good or bad, he would be satisfied with.

Another witness, but son of the defendant, testified also, that the plaintiff had given the defendant authority to sell and dispose of the horses as his own.

This last witness, and another who accompanied the defendant, stated that the plaintiff's horses were in low order when they were put into the drove; that at St. Charles they were detained by the ice running in the Missouri, and drove the horses down the river below St. Charles, for the purpose of getting food conveniently for the horses, where one of the plaintiff's horses had his thigh broken by a fall (as was supposed) on the ice; that the drove, consisting of about ninety head, sixteen or twenty of which only were horses, and the rest mules, passed through Kentucky and Tennessee, into Alabama and Mississippi; that the defendant, about the time he crossed the Tennessee line, became indisposed, and was unable to attend personally to his business; that when they arrived at Pickens, in Alabama, but few of the stock had been disposed of, and those sold were mostly mules, sold on credit, and that none of the plaintiff's horses had been sold; that there the defendant exchanged two of the plaintiff's horses for mules, and also two of his own; that the plaintiff's horses were thin when they were put into the drove, and had become too lean to be saleable, and the mules were considered more saleable; that the defendant went thence to Decatur, in Mississippi, and the four mules escaped and were never afterwards found, though search was made. At Decatur, defendant employed one Adams to assist him in disposing of the stock. The defendant finding it impossible to sell the stock for good money, sold, between Decatur and Pickens, several head of it for Decatur money, amongst them two of the plaintiff's horses. The Decatur money was not current except in the vicinity of the bank, where it would be taken for traveling expenses and in ordinary transactions. That he sold the remaining part of the drove through an arrangement with the bank agreeing to take a bill of exchange drawn by the bank on a house in New Orleans.

All the Decatur money previously received was deposited in the bank, and that also was included in the bill of exchange. This bill was for $6,700: the draft was protested on presentment. The defendant's agent returned to Decatur about the 1st of March, 1839; there he, the son of the defendant, made a new arrangement with the bank, the officers assuring him that another bill would be accepted, if it were not presented before the 20th of May then next.

This bill was also protested, and left to be sued on, or collected in any way that might be most proper. The witness said, the draft on New Orleans was all lost; that defendant had not received anything on it; that the defendant was taken sick from the time he crossed the Tennessee line, and continued to be too much indisposed to transact much business himself.

That the defendant sold his drove for Decatur money because, at that time, the bank had been drawing on Mobile, and had advertised to...