Salter v. Glenn

• Decision Date: 31 January 1871
• Court: Georgia Supreme Court
• Parties: SAMUEL P. SALTER, plaintiff in error. v. GLENN, DUFFIELD & COMPANY, defendants in error.

42 Ga. 64

SAMUEL P. SALTER, plaintiff in error. v. GLENN, DUFFIELD & COMPANY, defendants in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1871.)

[COPYRIGHT MATERIAL OMITTED.]

[COPYRIGHT MATERIAL OMITTED.] tract was made between one of the plaintiffs, Mr. Wright, alone, and the defendant, it is witness against witness, and the plaintiffs cannot sustain their version of the contract without additional proof: Held, That such charge was error, that the witnesses being both of them parties, the case ought to have been submitted to the jury to determine the credibility under all the facts and evidence of the case, and that the Court ought to have granted a new trial on this ground.

New Trial Jury. Before Judge Cole. Houston Superior Court. August Term, 1869.

Glenn, Duffield & Company sued Salter for $6,834 50 balance on account. He pleaded that he was their agent to *buy cotton; was furnished by them with money for that purpose, and did buy large quantities, specified, for which they agreed to pay him the usual, reasonable, commissions, and that two and half per cent, on the purchases was reasonable. And he appended to his plea his version of the account between them. In it, he charges himself with cash furnished by them, $54,600 00, took credit for $52,761 28, all of which he said he paid out for cotton, bought by him for them, except $5,000 00 which he lost, without any fault on his part. This left them in debt to him $1,838 72. The account then charged them with $9,847 28, being two and a half per cent, on the purchases made by him for them, from specified parties, $3,365 75 of which was on account of an alleged purchase of cotton from Jourdan, and $5,625 00 on account of another from Beall. He claimed balance of $8,008 56, as due to him, and prayed judgment therefor.

Wright testified, that he employed Salter for the firm, and that the contract was that Salter was to have two and a half per cent, on amount paid for small lots of cotton, say from one to fifteen bales, and $1 00 per bale, on large lots; that the account sued on showed the correct balance due the firm. He said Salter contracted for fifteen hundred bales of cotton from Beall, at thirty cents per pound, and paid a bonus of $25,000 00, furnished by the firm, but that Beall's cotton was seized by the United States authorities, and the trade, with Salter's consent and approval and at his suggestion, was rescinded; Salter also contracted for one thousand bales from Jourdan, at thirty cents per pound, but as the plaintiffs did not like the samples, they would not take it. But a few days thereafter, Wright, in person, went and bought the Jourdan cotton, by paying thirty cents per pound, and $500 00 to Jourdan's agent. Plaintiff's closed.

Salter testified that the contract was, that he was to have two and a half per cent. He said that he bought the Beall cotton when itwas worth thirty-two or thirty-three cents per pound, and that the trade was rescinded in his absence, without *his participation or knowledge, when cotton had declined to twenty-eight cents. He admitted that they, at first, declined taking the Jourdan cotton, which he had bought, but that the taking of it, at last, was under information given by him to Wright, and that Wright went, lest Salter\'s going might arouse suspicion and prevent the sale. He also read papers showing that he was authorized to buy any number of bales of cotton for plaintiffs, and an account against him, rendered by Glenn, one of plaintiffs, in which $20,000 00, in gold, was stated as on the "Beall cotton account."

Other witnesses, including the other parties, testified, touching said $5,000 00 lost, and the facts as to the Beall and Jourdan cotton, and to what compensation was usual for purchasing agents, giving facts and admissions, pro and con., as to whether the $5,000 00 was carelessly lost, and as to who really bought said cotton, plaintiffs or defendant.

Argument being had, the counsel for the defendant requested the Court to charge the jury as follows:

1st. That the plaintiffs must prove their accounts sued on, the burden of proof being upon them.

2d. That if the jury believe the account to be taken from the books of plaintiffs, and to purport to give a correct statement of their doings with defendant, as their agent, giving credits as well as debits, and if, from the account itself, they see that important credits are not given to defendant, the omission casts suspicion upon the entire account and the books from which it purports to be taken.

3d. That if plaintiffs rely upon the plea of defendant as proof of their account sued on, they must take the entire plea; they cannot offer a part of it in evidence as an admission without offering all, and if any of it be evidence for them, all is for the defendant.

4th. That, in this case, the plea not having been given in evidence by plaintiffs, cannot be used as evidence by them.

5th. That, if the jury believe that the admission in the plea is founded upon information derived by defendant from plaintiffs, and that the defendant has been deceived by such information, such admission is no evidence for plaintiffs, especially if the jury believe that the plaintiffs kept the books of account between them and defendant.

6th. That the account sued on here, purporting to give, correctly, the debits and credits, and to strike a correct balance between plaintiffs and defendant, and omission of any important credit casts suspicion on all the account, and the correctness of the balance is clearly disproved; and if the jury believe, from the evidence, that such omission is in the account, the testimony of plaintiffs, that it is correct, is strictly disproved and contradicted, nor can the plea of defendant be used as admitting its correctness or strengthening plaintiffs' case, because said plea is utterly against the correctness of such balance.

7th. That, if the jury believe that these accounts between plaintiffs and defendant were kept in the books of the plaintiffs, such books furnish the highest evidence of the account sued on, and the failure of plaintiffs to produce said books raises a strong presumption that said books, if produced, would operate to their prejudice.

8th. That if the jury believe that the plaintiffs in. this case have contradicted each other, or made statements at one time inconsistent with and contradictory to statements made at another time, or have been contradicted by others upon points material to the issue, especially as they are the plaintiffs and directly interested, and especially if the witness contradicting them be disinterested, they become unworthy of credit in this case, and the jury are at liberty to discredit them altogether, and especially, in this case, as to contra-dictory statements upon material points made, under oath, in answer to interrogatories in the same case. It is not necessary to call the attention of the witness to the contradictory statements then made under oath, before impeaching him.

9th. That, whilst it is true, as a general rule, that two or threewitnesses are better than one, and will be more readily *credited, yet, in this case, upon the point of what this contract was, if the jury believe that the contract was made between one of the plaintiffs, (Mr. Wright) alone, and the defendant, it is witness against witness, and the plaintiffs can not sustain their version of the contract without additional proof.

10th. That, if the plaintiffs seek to produce the admissions or confessions of defendant, as such additional proof, the law is, that all such admissions should be scanned with care, and that, if the jury believe, from the evidence, that the defendant stated, when charged that the contract was $1 00 per bale, that he did not, it is tantamount to a denial that such was the contract, etc., and is no admission of it.

11th. That the time and place are of the utmost importance in admissions, where but one witness testifies to it especially; and if that witness be a party interested and makes contradictory statements on oath about time and place, such admission, always to be scanned with care, becomes utterly worthless and can not avail against defendant.

12th. That, if the jury believe from the evidence that the defendant arranged all the preliminaries of the contract for the Jourdan cotton and completed the same, except the mere payment of the money, and one of the plaintiffs did that, defendant is entitled to his commissions thereon, whatever those commissions may be.

13th. That, if the jury believe from the evidence, that defendant made the contract for the Beall cotton and a bonus of $25,000 00 was paid to Rust, the agent of Beall therefor, the contract was a binding one, and Beall became responsible to plaintiffs for the cotton or damages in lieu of it, and defendant became entitled to commissions thereon, whatever those commissions may be.

14th. That if the plaintiffs afterwards rescinded the trade with Beall, even with the advice of defendant, defendant is still entitled to his commissions, unless he expressly waived and gave them up. 15th. That, if the contract for the Beall cotton was rescinded, *because of the failure of plaintiffs to comply with their contract for the Beall cotton by paying the money therefor, then

the defendant is clearly entitled to commissions thereon, and even if the contract was rescinded because, of the seizure by the Federal authorities, plaintiffs should have looked to Beall for damages, and not sought to visit it on their agent by depriving him of his commissions.

The first request was given; the second, third, fourth, fifth, sixth, seventh and eighth were refused; the ninth was given; the first clause of the tenth was given, the latter refused; the twelfth request was given; the thirteenth was given, but with the emphatic qualification that if Salter assented to a rescission of the trade, he was not en-titled to his commissions; the fourteenth and fifteenth were...