Townsend v. Gates

• Citation: 25 Mo.App. 336
• Parties: J. W. TOWNSEND, Appellant, v. ELIJAH GATES ET AL., Respondents.
• Decision Date: 05 April 1887
• Court: Court of Appeal of Missouri (US)

25 Mo.App. 336

J. W. TOWNSEND, Appellant, v. ELIJAH GATES ET AL., Respondents.

Court of Appeals of Missouri, St. Louis.

April 5, 1887

APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Affirmed.

BRECK JONES and WOOD & MONTGOMERY, for the appellant.

JOHN R CHRISTIAN, for the respondents.

OPINION

ROMBAUER J.

This cause, as we are informed by statement of counsel on both sides, was tried thrice before a jury, the first two trials resulting in their disagreement, and the last, from which this appeal is taken, in a verdict for the defendants.

The action is one brought by a principal against his factors to recover losses caused to him by the latter's disobedience of positive instructions in buying a lot of wheat, for closing out one of the plaintiff's wheat transactions. The answer admitted the departure from instructions, and the loss, and set up the following affirmative defence:

That all of the plaintiff's business with the defendants was transacted by one Johnson, a man in the defendants' employ, with the distinct understanding, and upon condition that the plaintiff's business should be under the exclusive management of said Johnson, and that, in the matter of executing orders for the plaintiff, the said Johnson was to exercise his own judgment and discretion; that the plaintiff's said orders, when received, were placed in the hands of Johnson, to be executed as his judgment should dictate, and the said Johnson, not deeming it for the best interest of the plaintiff to make the purchase, as instructed by the plaintiff, did not make it on the day directed, but on a subsequent day, of which fact the plaintiff was advised and acquiesced therein.

On the trial of the cause, the court ruled that the burden of proof was upon the defendants, and instructed the jury on the question of the burden of proof, and the necessity of a preponderance of evidence on the part of the defendants, in terms to which no just exceptions can be taken.

The evidence consisted mainly of the testimony of Johnson, on the one hand, and that of the plaintiff, on the other, and of the correspondence by mail and wire that passed between the plaintiff and the defendants. There was no controversy but that Johnson acted in good faith, and in a manner which, in his judgment, was likely to be most beneficial to the plaintiff, and that he so acted without any active interference on the part of the defendants.

Upon the request of the plaintiff, the court gave the following instruction to the jury:

" Unless you find, from all the facts and circumstances in evidence, that, before the transaction here in dispute, Mr. Johnson, as an employe of the defendants, was authorized by the plaintiff to use his best judgment for the interest of the plaintiff, in executing all orders of the plaintiff, concerning business of the plaintiff in charge of the defendants, as his commission merchants, or agents, and that, while such authority existed, said Johnson, acting as employe of the defendants, declined, in the exercise of said authority, to execute the instructions of the plaintiff, July 6, 1882, and afterward purchased grain for the plaintiff, in the exercise of said authority, on or about the eleventh day of July, A. D., 1882, then your verdict should be for the plaintiff."

The court, also, upon the plaintiff's request, submitted the following special issue to the jury, for their finding:

" The court instructs the jury to answer ‘ yes' or ‘ no’ to

...