Ruffner v. Hewitt

Decision Date15 July 1874
Citation7 W.Va. 585
CourtWest Virginia Supreme Court

1. An agency may be created by express words or acts of the principal, or it may be implied from his conduct and acquiescence. The nature and extent of an agency may be implied and inferred from circumstances. A common mode of appointment of an agent is by a written request, or by implication from the recognition of the principal, or from his acquiescence.

2. An account of sales rendered by a consignee to a consignor is prima facie evidence of its correctness.

3. Generally, in equity, an account current rendered by one merchant to another, received and held without objection will be deemed a stated account, and the objection to such accounts rendered, which will prevent them from being stated accounts, must be made within a reasonable time, and it lies upon the party contesting the accountss, so rendered, to prove that he made objection within a reasonable time.

4. A settled account will, generally, be deemed conclusive between the parties, unless some fraud, mistake, or omission, or inaccuracy is alleged and shown.

5. In cases of settled account a court of equity will not generally, open the account, but will, at most, only grant liberty to surcharge and falsify, unless in cases of apparent fraud.

6. Generally, it is the right of an agent to be reimbursed all his advances, expenses, and disbursements, made in the course of his agency, on account of or for the benefit of his principal, when the advances, expenses and disbursements have been properly incurred and reasonably and in good faith paid without any default on the part of the agent.

7. Generally, a dissolution of a partnership leaves every partner in possession of the full power (unless upon the dissolution it has been exclusively confided and delegated to some other partner or person) to pay and collect debts due to the partnership; to apply the partnership funds and effects to the discharge of the partnership debts; to adjujst and settle the unliquidated debts of the partnership; to receive any property belonging to the partnership; and to make due acquittances, discharges, receipts and acknowledgments of their acts in the premises.

8. Until the affairs of the partnership are settled, and outstanding engagements made good, the partnership must, in contemplation of law, have a continuance, so far as respects the winding up of its affairs.

9. If an agent has, without his own default, incurred losses or damages in the course of transacting the business of his agency, or in following the instructions of his principal, he will be entitled to full compensation.

10. It is, ordinarily, the duty of an agent where the business in which he is employed admits of it, or requires it, to keep an account of all his transactions on behalf of his principal not only of his payments and disbursements, but also of his receipts; and render such accounts to his principal, at all reasonable times, without any suppression, concealment or overcharge.

11. If the agent unnecessarily exceeds his commission, or risks the property of his principal, he thereby renders himself responsible to his principal, for all losses and damage which are the natural consequences of his act.

An appeal, by Samuel A. Miller and several persons who were members of the firm of Ruffner, Donnally & Co., on behalf of said firm, from a decree rendered by the circuit court of Kanawha county, on the 6th day of July, 1869, in a suit in chancery therein pending, wherein said Ruffner, Donnally & Co., were complainants and Hewitt, Kercheval & Co., Hewitt, Roe & Co., J. J. Roe & Co., Humphrey, Tutt & Terry, and a large number of other persons, were respondents. The names of the various firms, who were made respondents, will be found in the opinion of the Court.

The record, as printed, is very voluminous; but as the contest turned upon the settlement of various and complicated accounts, extending over a period of several years, between the complainants and respondent firms, which are investigated at length by the Court, and all the material facts stated, the Reporter deems any further statement unnecessary.

The Hon. James W. Hoge, judge of said circuit court, presided at the hearing below.

Samuel A. Miller and Daniel Lamb for the appellants.

Willian S. Pope, of Missouri, and Nicholas Fitzhugh for the appellees.


This is a suit in equity in the nature of a foreign attachment. The bill in the case was filed on the 1st Monday in April, 1859. The several firms of Hewitt, Roe & Co., Hewitt, Kercheval & Co., John J. Roe, & Co., and Humphrey, Tutt & Terry, are the principal defendants, against whom decrees are sought, by the plaintiffs, though there are other defendants, who the bill alleges have an interest; but the bill does not define or specify that interest; and there are still other defects.

I intend to preface this opinion with a full statement of the case as presented by the bill and answers, but found that to do so is not essentially necessary, and would make the opinion unnecessarily lengthy and cumbersome.

From the case as presented by the record it appears that the plaintiffs and a few others, who are dead, but whose personal representatives are parties to this suit, in the latter part of February, 1851, entered into a partnership under the firm name and style of Ruffner, Donnally & Co., in the county of Kanawha, then in the State of Virginia, but now in the State of West Virginia, for the purpose of buying salt, manufactured and to be manufactured, in said county, and vending the same in such markets as might be deemed expedient, in the western and southern states, and to open and keep a dry goods and grocery store in the " Kanawha Salines" in said county--the partnership to expire the 1st day of January, 1856. In May 1851, the firm of Hewitt, Roe & Co., commission merchants of St. Louis, Missouri, were appointed agents, or rather factors, of the plaintiffs, at that place, to sell at that place, and forward to country agents for sale the salt of plaintiffs, delivered to them. This appointment was made through Lewis Ruffner, one of the plaintiffs, who, at the time, was an active partner, and correspondent with Hewitt, Roe & Co., from Louisville, Kentucky, where he seems at that time to have been acting for the plaintiffs in carrying on their business, or part thereof. The firm of Hewitt, Roe & Co., was composed of James Hewitt, John J. Roe and Robert M. V. Kercheval, and no others.

The defendants Humphrey, Tutt & Terry, Robert M. V. Kercheval, James Hewitt and John J. Roe & Co., filed their answers to plaintiffs bill. The answers are lengthy and specific in character, and deny any indebtedness or liability to plaintiffs, by any or either of them, by reason of the matters alleged in the bill, and in fact it is claimed by Kercheval in his answer that the firm of Ruffner, Donnally & Co., are justly indebted to Hewitt, Kercheval & Co., in a sum and for causes hereinafter named; and Humphrey, Tutt & Terry that Ruffner, Donnally & Co., are indebted to them on account of their agency as factors of Ruffner, Donnally & Co., in a large sum of money, for balance of money advanced and paid by them to and for the use of Ruffner, Donnally & Co.

No other defendants appear to have answered the bill.

Humphrey, Tutt & Terry and Hewitt, Kercheval & Co., filed demurrers to the bill, but the demurrers were overruled by the circuit court of Kanawha county, on the 25th day of June, 1859.

It does not appear by the record that replications of any description were filed by plaintiffs to the answer of the defendants, but it does appear that both plaintiffs and the defendants, who answered, took and filed deposition in the suit, as though a general replication had been filed to each of the answers, and the court seems to have decided the suit upon its merits, as though general replications to the answers were filed. And in fact the counsel in the court below seem to have considered and argued the suit before the circuit court as though general replications to the answers had been filed. Under these circustances, I deem it proper that the suit should be considered and determined here as though the record showed that general replications were filed to the answers.

At the circuit court held for said county on the 18th day of August, 1859, that court heard the cause on the bill and exhibits, the answers of James Hewitt, R. M. V. Kercheval, Humphrey, Tutt & Terry, and the affidavit of Charles Hedrick, and the proceedings theretofore had in the cause, and without undertaking to settle any principles in the cause, decreed that an account be taken before master commissioner Alexander T. Laidley, to ascertain the state of accounts between Ruffner, Donnally & Co., Hewitt, Roe & Co., Hewitt, Kercheval & Co., J. J. Roe & Co., (properly John J. Roe & Co.,) and Humphrey, Tutt & Terry, respectively, arising out of the matter set forth in the bill, and other pleadings, and the proofs that should be offered in the cause, and any other matters which the commissioner should think pertinent, and the parties, or any or either of them, should request, and report his proceedings in the premises to the court.

Afterwards commissioner Laidley made his report to the court to which numerous exceptions were filed by plaintiffs and Hewitt, Roe & Co., Hewitt, Kercheval & Co., John J. Roe &amp Co., and Humphrey, Tutt & Terry; and on the 6th of July, 1869, the suit was heard by the court upon the papers theretofore read, and proceedings had therein, the depositions of witnesses, and other papers filed in the suit, the reports and accounts of commissioner Laidley and the papers and other evidence filed therewith,...

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  • Babcock v. United Railways Company of St. Louis
    • United States
    • Missouri Court of Appeals
    • June 6, 1911
    ...v. Williams, 2 Biss. 255; Woodward v. Luydon, 11 Ohio 360; Matthews v. Fuller, 123 Mass. 446; Fisher v. Rockwell, 104 Mass. 167; Ruffner v. Hewitt, 7 W.Va. 585; Smith Jefferson Bank, 120 App. 527; Althoff v. St. Louis Transit Co., 204 Mo. 166; Beland v. Brewing Co., 157 Mo. 593. Boyle & Pri......

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