The Charlotte v. Gow

• Decision Date: 31 August 1877
• Citation: 59 Ga. 685
• Parties: The Charlotte, Columbia and Augusta Railroad Company, plaintiff in error. v. James L. Gow et al., defendants in error.
• Court: Georgia Supreme Court

59 Ga. 685

The Charlotte, Columbia and Augusta Railroad Company, plaintiff in error. v. James L. Gow et al., defendants in error.

Supreme Court of the State of Georgia

(August Term, 1877.)

Principal and security. Principal and agent. Corporations. Before Judge Gibson. Richmond Superior Court. October Term, 1876.

The pleadings are sufficiently stated in the opinion. The plaintiff introduced in evidence the bond sued on, dated November 21, 1871. Also the report of the auditor appointed in the case who found that R. Habersham Wylly, as principal, was indebted to the plaintiff on an account running from November, 1871, to October, 1874, balance of $6,346.06.

Wylly testified before the auditor, in substance, as follows: Became agent of plaintiff in November, 1871. At first, made remittances about four times a month. There was subsequently a change to weekly remittances, and then to daily. Think latter course was adopted in July, 1873. As long as I pursued the plan of periodical remittances I deposited to my own credit in the Augusta National Bank. Freight prepaid, was money collected by me for freights going northward. Freight received, was southward bound freight for Augusta, and points beyond. My reports for freight received were made from freight-bills which were consolidated and brought together in one month, not from cash actually received. When I came into office, merchants of good business standing in Augusta, were permitted to take away their freight from the depot without paying charges, that is to take it on credit. Had visits from the president, superintendent, general freight agent or treasurer generally once a month. The officers of the plaintiff had opportunities of seeing the plan I was following, and frequently had conversations with me on the subject. There *was some correspondence about giving credit for freight, the result of which was that it was determined that in order to complete with other roads the credit system was necessary. This system caused my remittances to appear smaller than the amount of freight apparently received. The balance against me consists of freight uncollected, freight on hand, and a part may have been cash to my credit in bank. I either remitted the money in bank, or paid it out on good vouchers. Did not appropriate it to my use. Any money that I collected but did not deposit, was remitted to plaintiff in cash or by vouchers.

W. A. Graham is indebted to me $1,197.19 on ticket sales; he was in office when I became agent, and remained as ticket agent until the close of December, 1872. He remained in theemployment of the plaintiff as loading and unloading clerk after ceasing to be ticket agent. There was objection to him as ticket agent, but I continued him for some time so as to give him a chance to make up the difference. Baird attended to the duties of the office while I reported Graham as ticket agent. This was after Graham had been objected to.

By reference to consolidated account current, I find that in November, 1871, 1 made three remittances; in all the other months I made more than three. Accounts current were made from reports of freight received; made the accounts current as embodying what the agent was responsible for; forwarded account current each month. Started it with an adjusted balance showing what was due at close of previous month. Do not admit all accounts current revised and signed by me as correct; signed them officially as matter of form; they differ in some respects from my original reports. It was not my own fault that I was unable to carry on the business. Admit that I was frequently drinking while agent, but don't think a great part of the trouble is due to that. Could attend to duties when not under the influence of liquor. The cash collected was turned over to me by different collectors, which I had from time to time. *Should have had a regular book keeper; that was what was neglected. Cannot assert positively that Graham was acting as ticket agent when I took charge.

The remainder of this witness' testimony is taken up with showing the assets turned over by him after his discharge, and that he had not sufficient force allowed him by the plaintiff to do the work required.

F. H. Gordon testified, in substance, as follows: Was employed in the treasurer's office of plaintiff during the period embraced in the agency of Wylly, up to June, 1873; after that date, as auditor of the road. Remittances were sent to the treasurer. Wylly had no fixed day on which to report; his practice was, as was also that of his predecessor, to send forward his vouchers about once a week; he had no money to remit, as it was generally consumed in settling freight exchanges with the Georgia Railroad, and other connecting roads at Augusta; that was his duty, and then to remit any excess held by him. When he had money, he was required to remit daily, but he scarcely ever had any; frequently money bad to be sent him from Columbia to finish paying freight exchanges. Nine-tenths of his remittances were in vouchers received from these settlements. He did not remit cash collected by him to Columbia (the headquarters of the road) daily; the practice before he came into office and after, was not thus to remit. Did not notify Gow that he was not so remitting. He did make daily remittances during the latter part of his time. He was not discharged for failure to make daily remittances, but for inattention to business of agency. Knew that he delivered freight without prepayment, but don't think the company had any such practice. Upon my appointment as auditor, told Wylly that he and his bondsmen were responsible for deliveries, and that he ought not to pursue such course. Such deliveries were without authority, though I do not know that any officer of the company forbade them. There was a balance against Wylly carried forward from month to month; this is an incident toall agencies. It was impossible for the officers of *plaintiff to know whether this balance represented freight undelivered and remaining in the warehouse, or freight delivered and uncollected for. The president and superintendent do not look after such matters as relate to the details of agencies except upon report of irregularities. I know of no such report having been made of Wylly until September, 1873, when he was discharged. Johnston was president of the road until October, 1872; Palmer succeeded Johnston. The president only had the authority to instruct agents. Wylly never received any instructions in violation of the terms of his bond, with reference to the delivery of freights or remittances. The plaintiff did not connive at Wylly\'s delaying remittances or deliveries of freight without prepayment. He was not in the employ of the company at the time the rules of 1870 were issued. As soon as I discovered irregularities in Wylly\'s agency, I at once discharged him, and on the same day notified Gow. Considered the clerical force allowed Wylly ample.

Extracts from printed rules to govern station agents were introduced.

January 1, 1870.—"Remittances must be made to the treasurer weekly—the last remittance to close month's business to be made in sufficient time to reach this office not later than the second day of the month succeeding the one for which credit is asked."

"Agents will be allowed until the 5th of each month to have their reports of previous month's business in the general agent's office. No deviation from these rules will be permitted."

June 2, 1873.—"Collection of charges. Receipts and delivery of freight. Your attention is directed to general rules which require that charges on freight (unless prepaid) must be collected on delivery. This rule has been sometimes disregarded, but must not be hereafter. Agents have no discretion in the premises, and will be held personally responsible for any loss occurring from neglect of this rule."

E. P. Alexander testified, in substance, as follows: Was *superintendent of plaintiff from May, 1871, to September, 1872, inclusive. I never authorized any change, alteration or modification of the terms or obligations of Wylly\'s bond, or any administration of his duties in any manner inconsistent with its requirements. It may be that daily remittances were sometimes found to be inconvenient or impracticable, and that they were not insisted upon oftener than once a week, but if so, it was but as a concession to the agent\'sconvenience from day to day. E. R. Dorsey was general freight and ticket agent.

Letter from Dorsey to Wylly, dated Columbia, February 29, 1872:

"I wish to call your attention to your freight exchange account for November and December. I enclose herewith a statement of same, with debits as rendered by you, and credits as given by the treasurer, which show a balance carried from November to December, and finally a balance of $90.57, belonging to earnings of 1871, carried into those of 1872. You are aware of the fact that our business is settled monthly, and that a statement of earnings is made up each month for the board of directors, and you can readily perceive how impossible it is to make a true report while balances are carried from one month into another. I wish to show you the importance of closing every month your freight exchange account, so as your credits in treasurer's office will balance with charges column of freight forwarded report. This is easily done. It is done at Charlotte and Columbia. I have endeavored often to impress the importance of this system on Mr. Williams, the former agent at Augusta, who settled in the same manner that you do, but never succeeded. I hope, however, in future, that I will have no more trouble with this important account at your agency."

James L. Gow testified, in substance, as follows: Had no notice of non-payment of freight before delivery, nor of Wylly's failure to make daily remittances. Made no inquiries as to how he was conducting the affairs of the agency. *Read the bond before signing it, but did not...