Stewart v. Morris

• Decision Date: 03 October 1899
• Docket Number: 591.
• Citation: 96 F. 703
• Parties: STEWART et al. v. MORRIS et al.
• Court: U.S. Court of Appeals — Seventh Circuit

96 F. 703

STEWART et al. v. MORRIS et al.

No. 591.

United States Court of Appeals, Seventh Circuit.

October 3, 1899

Samuel P. McConnell, for plaintiffs in error.

C. H Aldrich, for defendants in error.

Before WOODS and JENKINS, Circuit Judges, and BAKER, District Judge.

WOODS Circuit Judge.

This is the second writ of error in this case. 60 U.S.App. 232, 32 C.C.A. 7, and 88 F. 461; 60 U.S.App. 557, 32 C.C.A. 203, and 89 F. 290. The bill of exceptions shows that counsel for the plaintiffs, who are here the plaintiffs in error, upon the delivery of the court's charge to the jury 'excepted specifically to each of the following propositions of law stated in said charge':

(1) 'The rule of law is that an agent is not bound in a transaction if he acts for, and is understood as acting for a principal, disclosed at the time as the principal in the transaction; but the mere fact that in the course of these transactions he names a principal or a person for whom he may be acting is not sufficient to exempt him from liability if he chooses subsequently to contract in his own name as principal, and assumes the position of principal in the transaction.' (2) 'If, on the other hand, it appears from the testimony that Mr. Overstreet, acting for the plaintiffs, told Mr Cassell that the cattle were owned by Wilson, and, further, so acted and conducted himself that Mr. Cassell, representing Nelson Morris & Co., was bound to understand that they were simply representing this man Wilson, and not themselves, going along and taking no part except that of buyers' (sellers') agents for Wilson, then the set-off is not sustained, because it would be a transaction by them simply as agents.'

(3) 'If you find that they (Cash, Stewart & Overstreet) so conducted themselves that they were understood, and properly understood, by Mr. Cassell, representing Nelson Morris & Co., as the principals, then you must ascertain the amount of damages suffered by Nelson Morris & Co.'

The disputed point in the case was whether Cash, Stewart & Overstreet were principals, or merely agents, in selling to Nelson Morris & Co. at the National Stock Yards at East St. Louis, in December, 1890, 557 live cattle, brought there for sale by W. D. Wilson, and afterwards found to have been under a chattel mortgage. The defendants in error, having been compelled to pay the debt secured by the mortgage, pleaded the amount paid as a set-off against the undisputed demand of the plaintiffs in error, who, it is conceded, are the successors, and bound by the obligations, of Cash, Stewart & Overstreet.

The first proposition is objected to as meaning that, even though the jury believed the transaction to have been one of agency and so understood by the parties, yet the plaintiffs in error made themselves liable as principals subsequently by presenting to Nelson Morris & Co. a bill in their own name, and collecting thereon the price of the cattle. The instruction carries no such implication, and another part of the charge made it impossible for the jury so to understand it.

The contention in respect to the second and third propositions is that by implication they imposed upon the plaintiffs in error the burden of proving that they acted in the transaction as agents, and not as sellers, and besides required that their position be established by stronger proof or greater certainty than was...